Peters v. Brunswick-Balke-Collender Co.

• Decision Date: 14 November 1912
• Citation: 6 Ala.App. 507,60 So. 431
• Parties: PETERS v. BRUNSWICK-BALKE-COLLENDER CO.
• Court: Alabama Court of Appeals

60 So. 431

6 Ala.App. 507

PETERS v. BRUNSWICK-BALKE-COLLENDER CO.

Court of Appeals of Alabama

November 14, 1912

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by the Brunswick-Balke-Collender Company against P. Frank Peters. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Frederick G. Bromberg, of Mobile, for appellant.

R. H. & R. M. Smith, of Mobile, for appellee.

PELHAM J.

This suit was instituted in the court below by the appellee. The complaint originally contained counts in the statutory form in trover and detinue. Subsequently three other counts were filed in conversion setting up the facts showing the alleged conversion. The case was tried before the court without a jury, and a judgment in detinue rendered in favor of the plaintiffs, and it will be unnecessary to discuss the various rulings on the pleadings in trover. In the first instance the defendant filed a plea of the general issue to the count in detinue, and subsequently, it would seem, withdrew this plea and filed two special pleas.

The conduct of the trial would authorize the conclusion that the case was tried without objection on issues joined on the special pleas and the general issue, and a consideration of the assignments of error will be treated on that theory. Hardeman v. Williams, 150 Ala. 415 Gainer

v. So. Ry. Co., 152 Ala. 186, 44 So 652; Planters' & Merchants' Independent Packet Co v. Webb, 156 Ala. 551, 46 So. 977, 16 Ann. Cas. 529; Richmond & Danville R. R. Co. v. Farmer, 97 Ala. 141, 12 So. 86.

The defendants are shown to have received the benefit of all matters of defense set up, or attempted to be set up, by special pleas, on the issues upon which the case was tried and submitted to the court, sitting as judge and jury, and if there was error in the rulings on the pleadings it was without injury.

The judgment being in detinue, it is unnecessary to notice, as suggested by appellee, the trover feature of the case. The complaint in detinue is in the statutory form, and there is nothing in the caption or otherwise appearing from it to suggest that the plaintiffs are a foreign corporation or that they based their right to recover on a title evidenced by an illegal contract of sale reserving title, entered into with a third party in violation of the constitutional provision and statutes which require, under penalty, that every corporation not organized under the laws of this state shall, before engaging in or transacting any business in this state, file an instrument in writing in the office of the Secretary of State designating at least one known place of business in this state and have an authorized agent or agents thereat. Const. § 232; Code, §§ 3642-3644.

Had the suit been on the contract or agreement claimed to be illegal because an act of business in violation of the Constitution and statutes, there might be merit in the appellee's contention that to be available to appellant this matter must have been specially pleaded; but such is not the condition presented by the record in this case. Here the plaintiffs sue in detinue, declaring on the statutory form, and, when they offer in evidence the contract or mortgage entered into between them and a third party to sustain their case through title therein shown, the defendant objects, and the court admits the instrument over the appellant's objection, and subsequently, at the close of plaintiffs' testimony, refuses the appellant's motion for a verdict for defendant based on the specified ground that the contract evidencing title and right of possession in plaintiffs cannot be...