State v. Bristol Sav. Bank

• Decision Date: 13 November 1895
• Citation: 18 So. 533,108 Ala. 3
• Parties: STATE v. BRISTOL SAV. BANK
• Court: Alabama Supreme Court

18 So. 533

108 Ala. 3

STATE v. BRISTOL SAV. BANK

Supreme Court of Alabama

November 13, 1895

Appeal from circuit court, Chambers county; N. D. Denson, Judge.

Action by the state of Alabama against the Bristol Savings Bank, a foreign corporation, for the recovery of a penalty for doing business in the state contrary to law. From a judgment for defendant, plaintiff appeals. Reversed

Const. Ala. art. 14, § 4, provides that no foreign corporation shall do any business in this state without having at least one known place of business and an authorized agent or agents therein.

Wm. C Fitts, Atty. Gen., and W. H. Thomas, for the State.

J. M. &amp E. M. Oliver, for appellee.

McCLELLAN J.

This is an action prosecuted by the state against the Bristol Savings Bank, a foreign corporation, for the recovery of the penalty prescribed by the act of 1887, "to give force and effect to section 4 of article 14 of the constitution of Alabama," it being alleged that said corporation did business in this state without having complied with the provisions of that act. Acts 1886-87, pp. 102-104. There is no question that the evidence adduced went to show every fact essential to a recovery unless it be that there was failure of proof of the main fact,-that the defendant did business in this state. The judge of the trial court thought there was no evidence of this fact, and upon that theory gave the affirmative charge for the defendant. We think he reached a wrong conclusion in this regard, and erred in giving the general charge against the state.

The business upon the doing of which the plaintiff relied for a recovery was the loan of money by the defendant to a resident citizen of this state, and the taking of a mortgage upon land of the borrower, situated in this state, to secure the debt which was evidenced also by promissory notes, with separate notes for installments of the interest. Under the constitution and the statute, a single act of business done, without complying with the prescribed conditions, is a violation of both. There need not be a carrying on of business. The loan of money here, and the taking here of notes and mortgage to secure repayment,-the mortgage being on land situated in this state,-is the doing of business here, within both the constitution and the statute. Ginn v. Security Co., 92 Ala. 135, 8 So. 388; Farrior v. Security Co., 88 Ala. 275, 7 So. 200; Mullens v. Mortgage Co., 88 Ala. 280, 7 So. 201. And the facts that the notes and mortgage are executed here, though they may be payable elsewhere, and the land embraced in the mortgage is situated here, are sufficient to show prima facie that the transaction involves the doing of business by the lender and mortgagee in the state of Alabama. Farrior v. Security Co., 88 Ala. 275, 7 So. 200; Mullens v. Mortgage Co., 88 Ala. 280, 7 So. 201. There is evidence of both these facts in this record, and it follows that the plaintiff made its prima facie case against the defendant. The witness Oliver, for the defendant, testified that he, as the agent of the borrower, negotiated the loan outside of the state, and that in respect of it he was not the agent of the defendant. These are conclusions of the witness. If they are not borne out by the facts of the transaction in the judgment of the jury, properly instructed by the court as to what constitutes agency, the conclusions amount to nothing; or, to state the proposition differently, the jury must look to all the evidence bearing upon the question of agency, including the conclusion of Oliver that he was not defendant's agent, in ascertaining whose agent he was, and there may be other facts which will justify them in reaching a different conclusion than that reached by the witness. There is...