Town of Linden v. American-La France & Foamite Industries, Inc.

• Decision Date: 16 April 1936
• Docket Number: 2 Div. 77
• Citation: 232 Ala. 167,167 So. 548
• Parties: TOWN OF LINDEN v. AMERICAN-LA FRANCE & FOAMITE INDUSTRIES, Inc.
• Court: Alabama Supreme Court

167 So. 548

232 Ala. 167

TOWN OF LINDEN v. AMERICAN-LA FRANCE & FOAMITE INDUSTRIES, Inc.

2 Div. 77

Supreme Court of Alabama

April 16, 1936

Appeal from Circuit Court, Marengo County; Benj. F. Elmore, Judge.

Action on promissory notes by American-La France & Foamite Industries, Incorporated, against the Town of Linden. From a judgment for plaintiff, defendant appeals.

Affirmed.

J. Paul Jones, of Linden, for appellant.

McKinley & McDaniel, of Linden, for appellee.

THOMAS Justice.

The suit was for the purchase of a fire truck and equipment.

The complaint is rested upon two notes given pursuant to resolution and contract, and executed in the name of the municipality, by its mayor, attested by its clerk, and authenticated by the official seal affixed.

The initial resolution authorizing the purchase and the resolution in consummation thereof are shown by the official minute or ordinance book of the municipality admitted in evidence. This was supported by the evidence of the mayor as to the purchase and the belated delivery of the equipment by the vendor.

The case was tried by the court without a jury. When a case is so tried, in order to present the rulings of the trial court on the rejection or introduction of evidence for review challenge by a due objection and reservation of an exception to such rulings must be shown. Where this is not shown by the bill of exceptions, nothing is presented for review.

The counts of the complaint are substantially in Code form, and not subject to the demurrer directed thereto. Code, § 9531 form 1; Kilgore v. Kimbrell (Ala.Sup.) 163 So. 896; Alabama Lime & Stone Co. v. Adams, 218 Ala. 647, 119 So. 853.

The presentation for payment to the clerk, under the statute section 1907, Code, is in the nature of a nonclaim and matter to be presented as a defense. Complaints and counts are not required to aver such presentment as a prerequisite to the commencement of such a suit. If a suit is begun within the time, it is sufficient presentation--that is, within the limitation pertaining to such an action. Section 8941 et seq., Code; Anderson v. City of Birmingham et al., 177 Ala. 302, 58 So. 256; Alabama City, G. & A. Ry. Co. v. City of Gadsden, 185 Ala. 263, 64 So. 91, Ann.Cas.1916C, 573; Town of Athens v. Miller, 190 Ala. 82, 66 So. 702; Perrine v. Southern Bitulithic Co. et al., 190 Ala. 96, 66 So. 705; City of Huntsville v. Goodenrath, 13 Ala.App. 579, 68 So. 676; City of Birmingham v. Jones, 228 Ala. 160, 153 So. 213; Elmore County, Ala., v. Moon (C.C.A.) 293 F. 297. In the instant counts the due date of the city's obligation was fixed by contract, and suit brought within the limitation of the statute counted from the due date.

There are several classes of pleas. The sustaining of demurrer thereto is well illustrated by the ruling as to pleas 7, 8, and 9. The municipality had the authority to purchase the equipment for its fire department after due resolution to that end. Under its governmental powers a city may act for the public good (Long v. City of Birmingham, 161 Ala. 427, 49 So. 881, 18 Ann.Cas. 507), and in that behalf, without calling for competitive bids, if not offensive to section 225 of the Constitution. In Van Antwerp et al. v. Board of Com'rs of City of Mobile et al., 217 Ala. 201, 204, 205, 115 So. 239, 242, it is declared:

"Code, § 1993 (1252), declares no ordinance or resolution or permanent operation shall be passed at the same meeting at which it is introduced, except by unanimous consent expressed by yea and nay vote entered on the minutes.

"In Pierce v. City of Huntsville, supra, [185 Ala. 490, 64 So. 301], certain improvement ordinances and resolutions were held not of 'permanent operation,' within the meaning of section 1252, Code of 1907.

"That section brought forward as section 1993, Code of 1923, was amended so as to provide:

" 'The council shall award no contract on bids except by resolution or ordinance of permanent operation.'

"The effect is to bring resolutions awarding contracts required by law to be upon competitive bids, and so awarded within the definition of a resolution of 'permanent operation' under that section.

"The letting of contracts by other methods, when authorized by law, is not within the terms of the amended section."

The words "permanent operation" in the statute (section 1993, Code) are held to refer to or mean an ordinance which continues in force until repealed. Michael v. State ex rel. Welch et al., 163 Ala. 425, 50 So. 929; Pierce v. City of Huntsville, 185 Ala. 490, 64 So. 301; Holley v. Brunson, Mayor, 221 Ala. 572, 130 So. 173.

There was no reversible error in sustaining the demurrer to such pleas.

Demurrer was likewise sustained to amended pleas B,...