Stremming Veneer Co. v. Jacksonville Blow Pipe Co.

• Decision Date: 03 November 1955
• Docket Number: 5 Div. 627
• Citation: 83 So.2d 224,263 Ala. 491
• Parties: STREMMING VENEER CO. v. JACKSONVILLE BLOW PIPE CO.
• Court: Alabama Supreme Court

Page 224

83 So.2d 224

263 Ala. 491

STREMMING VENEER CO. v. JACKSONVILLE BLOW PIPE CO.

5 Div. 627.

Supreme Court of Alabama.

Nov. 3, 1955.

Grady Reynolds and Reynolds & Reynolds, clanton, for appellant.

Jos. J. Mullins, Clanton, for appellee.

PER CURIAM.

This is an appeal by defendant from a judgment in favor of plaintiff for goods and chattels sold and for work and labor done. The complaint is on the common counts. The defense was the general issue and the customary leave.

Prior to June 30, 1950, and in 1946 and 1947, plaintiff did much work for defendant in a plywood plant at Maplesville, Alabama. Defendant had two plants at Maplesville, plant No. 1 being across the railroad from plant No. 2. The work done by plaintiff included installing and servicing blowpipes and equipment to take sawdust and shavings to the furnaces. For that work defendant had paid plaintiff a large sum aggregating approximately $20,000 to $30,000. Plaintiff was then an unincorporated enterprise located in Jacksonville, Florida. Plaintiff became incorporated on March 15, 1948 in Florida, and began operations as a corporation on January 1, 1949. After this incorporation, and in 1949, plaintiff furnished labor and material for a dust collector for defendant's plant No. 1, and repaired some equipment there. On December 3, 1949 plaintiff sent defendant a bill for that service amounting to $3,365.08, less payments of $646 made to workmen on the job, which left a balance of $2,719.08. Defendant refused to pay it on account of defects claimed in the material and labor which had been supplied at plant No. 2.

The evidence shows that plaintiff had not qualified to do business in Alabama as a foreign corporation, and therefore could not recover the balance claimed for said work and material furnished for the dust collector at plant No. 1 in 1949. On June 30, 1950 the plaintiff qualified to do business in Alabama, and on that day Mr. Montgomery, president and general manager for plaintiff, went to Maplesville, where defendant's plants were situated, and saw Mr. Stremming, president and general manager of defendant, and they had some sort of verbal agreement. Mr. Stremming testified that he told Mr. Montgomery they (his corporation) would not pay him for the dust collector at plant No. 1, the amount of which was $2,719.08, unless he made the system work properly in plant No. 2. Mr. Montgomery testified that on June 30, 1950 at Maplesville, he agreed with Mr. Stremming after he examined the deficiency caused by the overload in plant No. 2, that he would correct and guarantee it if defendant would agree to pay the $2,719.08. To this defendant agreed.

Plaintiff claims to have written a letter on July 3, 1950 to defendant confirming the verbal agreement of June 30th. This letter named certain items of work and material necessary to correct the troubles in the blowpipe system at plant No. 2 and from Graham's plant to plant No. 1, and recited that in consideration of the above defendant was to pay plaintiff $2,719.08 when the plants were performing properly. It is noted that this is the exact amount of the balance of the invoice for the dust collector at plant No. 1 claimed by plaintiff, which it could not collect by law because plaintiff in performing that service was a foreign corporation and not qualified to do business in Alabama.

A carbon copy of the above letter was introduced in evidence. No notice to produce the original had been given before the trial began. What amounts to a demand was then made, but defendant did not have the original letter in court. Plaintiff testified that the original was properly addressed, stamped and mailed to defendant. The court overruled the objection and defendant excepted. Plaintiff also introduced a letter from defendant to plaintiff of July 12, 1950 referring to its letter of July 3, 1950, stating 'your letter seems to conform very much with our conversation with the exceptions of you not having in there about repipping two belt sanders setting next to the corner of the roll feed sanders'.

It is clear that error occurred in overruling the objection to the introduction in evidence of this carbon copy. The notice to produce on the trial or before the trial must be such as will enable a compliance. Clark v. Henderson, 244 Ala. 237(17), 12 So.2d 743; Sovereign Camp W.O.W. v. Ward, 196 Ala. 327(4), 71 So. 404; Thomas Bros. v. Williams, 170 Ala. 522, 54 So. 494. That principle is of course admitted, but it is insisted that the ruling was without injury to defendant since the letter by defendant of July 12th was an admission that such letter contained a true statement of the contract. Phillip Olim & Co. v. C. A. Watson & Sons, 204 Ala. 179, 85 So. 640. But defendant's letter of July 12th was in answer to plaintiff's letter of July 3d, not an answer to what purports to be a copy of that letter. Defendant was entitled to have evidence introduced according to the rules. But a violation must appear to be prejudicial. Supreme Court Rules, rule 45, Code 1940 Tit. 7 Appendix. Defendant did not deny having the original letter of July 3d though it was not in court. If the instrument offered was not a true copy of the letter of July 3d defendant could have quickly so discovered during the progress of the trial and called attention to it since the original was in his office some fifteen miles from the place of trial. We do not see where the substantial rights of defendant were violated by this error.

A similar legal status applies to a letter of July 19th by plaintiff to defendant. A carbon copy of it was offered and allowed over objection because it was secondary and no notice to produce the original had been given. We fail to see any prejudice in this ruling, though erroneous, considering the nature of the letter.

The contract should be treated as represented by the letter of July 3d, the answer to it of July 12th and the letter of July 19th. True, the letter of July 12th added a feature which was not expressly accepted by plaintiff, but was impliedly accepted in the letter of July 19th....