Walls v. Decatur Fertilizer Co.

• Decision Date: 16 November 1926
• Docket Number: 8 Div. 861
• Citation: 215 Ala. 426,111 So. 214
• Parties: WALLS v. DECATUR FERTILIZER CO.
• Court: Alabama Supreme Court

111 So. 214

215 Ala. 426

WALLS v. DECATUR FERTILIZER CO.

8 Div. 861

Supreme Court of Alabama

November 16, 1926

Rehearing Denied Jan. 13, 1927

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action by the Decatur Fertilizer Company against S.J. Walls. Judgment for plaintiff, and defendant appeals. Affirmed.

Street Bradford & Street, of Guntersville, for appellant.

Isbell & Scruggs, of Guntersville, for appellee.

BOULDIN J.

This is the second appeal in this cause; former decision, Decatur Fertilizer Co. v. Walls, 212 Ala. 226, 102 So. 32.

Plea A on former appeal alleges "The product shipped was worthless and had no value as a fertilizer."

Plea 2 of the present record alleges:

"*** That the consideration for said note has failed in this, the note was given for commercial fertilizer manufactured by plaintiff and sold to defendant as suitable for raising crops, and defendant avers that said fertilizer was worthless for the purpose for which it was manufactured and sold."

This is admittedly a plea of failure of consideration. Without dispute, the fertilizer, the consideration for the note sued upon, was sold by manufacturer to merchant dealer, not for his own use, but for resale; it was resold and much of the sale prices collected. Clearly, it was not worthless to defendant. 212 Ala. 228, 102 So. 32. The evidence therefore failed to sustain the plea. Rulings upon the replications to this plea and upon evidence of its effect upon crops of the users, to whom defendant sold, were immaterial. The plea does not present an issue of illegality of consideration in the sale of commercial fertilizer without the content of plant food required by law, nor breach of warranty of the guaranteed contents, required by law to be shown on the bags nor a breach of the general implied warranty that the product is suitable for the purpose intended, nor of sale of a spurious product upon fraudulent misrepresentations of the contents branded upon or attached to the bag as required by law. We are dealing only with failure of consideration under the facts before us.

The burden of proof was on defendant to sustain his plea that the fertilizer was untagged at time of delivery. Ala. Nat Bank v. Parker, 146 Ala. 513, 40 So. 987; Wadsworth v. Dunham, 117 Ala. 661, 23 So. 699.

Appellant urges the rule should be different where delivery is made to a common carrier.

The violation of a positive statute is not presumed. The plea sets up an affirmative rather than a negative defense, the status of the bags as tagged or untagged when passing from the possession of the seller to the buyer. The carrier selected by the buyer is his agent in effecting delivery.

The same rule obtains as to the registration of the brand and guaranteed analysis with the commissioner of agriculture. This is a record open to both parties. It is unlike the license to deal in fertilizers, an instrument in the keeping of the licensee. When put in issue, the burden is on him to produce it, make proof of its issuance. Edisto Phosphate Co. v. Stanford, 112 Ala. 493, 20 So. 613.

We are of opinion the place of delivery was at Decatur, the point of shipment. Whether the bags of fertilizer were tagged Is to be determined as of the time and place they were delivered to the beat as a common carrier.

The rule that a delivery to the carrier is a delivery to the consignee rests upon the theory that the carrier is, in the absence of other agreement, the agent of the consignee in accepting delivery. Decatur Fert. Co. v. Walls, 212 Ala. 226, 102 So. 32; Pilgreen v. State, 71 Ala. 368; McCormick v. Joseph, 77 Ala. 235; 35 Cyc. 316.

That the seller had several orders for the same product to be shipped by the same boat, and delivered to the carrier the required number of bags to fill all the orders, without marking or otherwise identifying each shipping unit, as destined to a particular consignee, and that the carrier received same, issued a bill of lading for each consignment, made no segregation of the bags of each consignee while in transit, but delivered to each the number of bags called for by his bill of lading would not change the rule as to place of delivery. It would rather evidence an approval or ratification of this method of handling the consignment by the carrier.

Defendant's refused charges 1 and 2 read:

"(1) The court charges the jury that if, when this fertilizer sued for was delivered to the boat at Decatur, a single bag of the fertilizer was not tagged, then your verdict must be for the defendant--and in that case, it would make no difference that it had once been tagged. If it had been tagged and was torn or lost off before it was placed on board the boat, and was then untagged, the note would be void, and your verdict should be for the defendant.

"(2) If any part of the fertilizer covered by this note sued on was not tagged when delivered to the boat at Decatur, your verdict should be for the defendant, and it would make no difference that said fertilizer had been previously tagged."

These charges are correct statements of the law as directly declared in Ala. Nat. Bank v. Parker, 146 Ala. 513, 40 So. 987, and Wadsworth v. Dunnam, 117 Ala. 661, 23 So. 699. See, also, Brown v. Adair, 104 Ala. 652, 16 So. 439; Steiner v. Ray, 84 Ala. 93, 4 So. 172, 5 Am.St.Rep. 332; Clark's Cove Guano Co. v. Dowling, 85 Ala. 142, 4 So. 604.

The issue presented by these charges was raised by plea No. 5. As held on former appeal, evidence that all or many of the sacks were untagged at the time they reached Walls landing made it a jury question as to...