American Amusement Co v. East Lake Chutes Co.

56 So. 961 | Ala. | 1911

SOMERVILLE, J.

The plaintiff sues the defendant for money alleged to be due for work and labor done and materials furnished for and to the defendant under a certain contract between the parties for- the improvement of certain real estate belonging to the defendant in Jefferson county, Ala. For defense the defendant pleads specially that plaintiff is a foreign corporation, and that in performing the contract sued on plaintiff was doing business in the state of Alabama without having complied with the requirements of section 232 of the Constitution and sections 3642 and 3643 of the Code of Alabama.

1. This plea unquestionably states a good defense to the action, and, if supported by proof, would have entitled the defendant to judgment. The demurrers to the plea were properly overruled. — A. W. R. Co. v. Talley-Bates Const. Co., 162 Ala. 396, 50 South. 341; Ware v. H. B. Shoe Co., 92 Ala. 145, 9 South. 136.

2. The plaintiff replied specially to this plea, alleging that it “was engaged in an interstate transaction, in that the order was taken by the plaintiff for the en-tile equipment sued for herein, which was one complete machine and attachments, then situated in the state of Virginia, and the same was by plaintiff transported to the state of Alabama from the state of Virginia, and was assembled and erected by plaintiff in said state of Alabama.” It is evident that, had the transaction in question involved no more than the sale and delivery of the machinery by the plaintiff to the defendant in Alabama, it would have been an act of interstate commerce, to which the laws of Alabama are not and could not be applicable. But the contract was not for the sale of machinery. It was an entire contract for transporting and assembling (that is, building into a structure) -certain materials on the defendant’s-premises: This' in-eluded, as set forth in the complaint, and replication, both labor and materials; and the fruition of the contract was not the delivery of an article of commerce to the defendant, but the erection of an improvement on its premises for a gross consideration. — Beard’s Case, 71 Ala. 60.

In doing this there can be no doubt but that the plaintiff was doing business in Alabama, became subject to its laws with respect thereto, and was not Avithin the protection of the principles that render interstate commerce immune against local regulation. Certainly labor is not an article of commerce, nor is the agreement to supply it, nor the execution of the agreement, an act of commerce. The demurrer to this replication Avas therefore properly sustained. — Ware v. H. B. Shoe Co., supra Paul v. Virginia, 8 Wall. 183, 19 L. Ed. 357. Viewed solely from the standpoint of the individuals concerned, the apparent result of this conclusion is, it must be conceded, abhorrent to the judicial conscience. But Ave cannot so vieAV the case, and are bound by their settled policy to give full effect to these laAvs of the state, regardless of results to individuals. — A. W. R. Co. v. Talley-Bates Const. Co., 162 Ala. 402, 50 South. 341.

3. The opinion of the defendant’s attorney that the plaintiff need not file any papers in Alabama before doing the stipulated work, though expressed to the plaintiff’s agent in the presence of the defendant’s agent, could not estop the defendant from invoking the application of the laws here considered; nor could such an opinion, whether deceitfully or honestly expressed, though it were accepted and acted on in good faith, excuse the plaintiff from the performance of the public duties enjoined upon him by law. And it is equally true that the defendant’s acceptance of the woijk, without complaint of the plaintiff’s derelictions in the premises, could not avail to suspend the operation of the laws. The special replication setting up these matters in avoidance of the special plea was, therefore, subject to the demurrer interposed thereto by the defendant, as correctly ruled by the trial court.

It results that there is no error shown by the record, and the judgment must be affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.