Vest v. Night Commander Lighting Co.

• Decision Date: 27 October 1931
• Docket Number: 8 Div. 941.
• Citation: Vest v. Night Commander Lighting Co., 24 Ala.App. 549, 139 So. 295 (Ala. App. 1931)
• Parties: VEST v. NIGHT COMMANDER LIGHTING CO.
• Court: Alabama Court of Appeals

139 So. 295

24 Ala.App. 549

VEST v. NIGHT COMMANDER LIGHTING CO.

8 Div. 941.

Court of Appeals of Alabama

October 27, 1931

Rehearing Denied Nov. 17, 1931.

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Action on promissory note by the Night Commander Lighting Company against Addie Vest. From a judgment for plaintiff, defendant appeals.

Affirmed.

Certiorari denied by the Supreme Court in Vest v. Night Commander Lighting Co., 139 So. 297.

Lynne &amp Lynne, of Decatur, for appellant.

Melvin Hutson, of Decatur, for appellee.

SAMFORD J.

The defendant, who resides in Alabama, entered into a written contract with plaintiff, who is a foreign corporation whereby plaintiff was to deliver to defendant f. o. b Jackson, Mich., a certain lot of lighting apparatus set out and described, and for which defendant agreed to pay $358 cash or to give his negotiable note due in six months, without interest. As a part of said contract it was stipulated: "It is also fully agreed that no agreement is binding between the Night Commander Lighting Company and the purchaser herein, except as provided in this contract, and that this contract covers all agreements expressed or implied between the Night Commander Lighting Company of Jackson, Michigan, and the purchaser subject to the approval of said Night Commander Lighting Company at its executive office at Jackson, Michigan; and that this contract is not subject to countermand except purchaser pays, as the liquidated damages thereon, one-half the purchase price specified herein." At the time of the signing of the above contract, defendant signed another contract with D. E. Treadwell, who acted as the agent of plaintiff in procuring the above contract, which later contract with Treadwell provided for: "Construction, erecting, installing and equipping said lighting plant at Falkville." This contract was introduced in evidence but is omitted from the transcript. The lighting apparatus contracted to be delivered, was delivered by plaintiff to the Cincinnati Northern Railroad Company, a common carrier, at Jackson, Mich., consigned to defendant at Falkville, Ala. Upon arrival at Falkville the apparatus was erected as designed, by one Mitchell who had been sent to do the work by Treadwell. Defendant paid Mitchell $26 for installing the plant and, in accordance with the terms of the contract entered into with plaintiff, executed and delivered to Mitchell for plaintiff the note which is the foundation of this suit.

In the absence of the contract entered into between defendant and Treadwell for the installation of the lighting plant, this court must presume that such evidence as was therein contained was sufficient to justify the trial court in its refusal to give the general affirmative charge at the request of defendant. Sherman v. Good, 21 Ala. App. 546, 109 So. 893.

The facts as above stated and shown by the record, show without dispute that the sale of the apparatus by plaintiff to defendant was an interstate transaction and governed by the laws governing interstate commerce. In the making of the sale to defendant, as shown by the contract, plaintiff was not required to qualify to do business under section 7209 et seq., Code 1923.

We have no means of knowing the terms and contents of the contract made by defendant and Treadwell for the installation of the lighting plant sold by plaintiff to defendant, and w...