Boddy v. Continental Inv. Co., 88 So. 294

Boddy v. Continental Inv. Co.

88 So. 294 | Ala. Ct. App. | 1921

Where the date of the commission to take depositions under act of Legislature 1911, page 487, was erroneously entered, it was proper for the court, after being satisfied by proof, to permit the clerk to amend the commission by entering the true date, and, it appearing that the opposite party had 10 days after notice within which to file cross-interrogatories, other requirements being compiled with, the court properly overruled the motion to suppress.

The asking leading questions, while not approved by the courts, are largely in the discretion of the trial judge, and, unless the appellate court is convinced that substantial injury was done to the objecting party, a judgment, otherwise free from error, will not be reversed.

It is admittedly the law that foreign corporations must qualify to do business in this state in accordance with the requirements of our Constitution and statutes, and contracts made by them in this state before qualifying are void. It is further the law that money, being but a medium of exchange, is not such an article of commerce as is protected by the interstate commerce statutes. Padgett v. Gulfport Fert. Co.,11 Ala. App. 366, 66 So. 866. It has also been decided that one transaction will constitute a doing of business, within the meaning of the statute. State v. Bristol Savings Bank, 108 Ala. 3,18 So. 533, 54 Am. St. Rep. 141.

The question, then, as presented by this record, is, was the contract for the loan of the money by the plaintiff to defendant as evidenced by the notes sued on, an act done in Alabama in violation of the Constitution and laws of this state? And does the evidence without conflict establish that fact?

The fact that the notes were dated at Birmingham, Ala., and payable at a bank in Birmingham, made a prime facie case that the loan was made in Alabama. State v. Bristol Savings Bank,108 Ala. 3, 18 So. 533, 54 Am. St. Rep. 141. But this was a presumption of fact as contradistinguished from a presumption of law, and therefore vanishes when the undisputed evidence rebuts such presumption. W. O. W. v. Dennis, 87 So. 616,¹ and authorities there cited. We have given consideration to the entire evidence and to the authorities cited and are of the opinion that the loan was made at the home office of the appellee, in New Orleans, La., upon application of appellant, accompanied by the notes and mortgage, and therefore the transaction was not had in Alabama.

We are also of the opinion that there is no evidence going to show that the Alabama Motor Truck Sales Company or Dupse acted as the agent of appellee in making the loan. It follows that the trial court did not err in giving the general charge as requested by plaintiff.

There is no error in the record, and the judgment is affirmed.

Affirmed.

¹ 17 Ala. App. 642.