Fries v. Acme White Lead & Color Works, 92 So. 31

Fries v. Acme White Lead & Color Works

92 So. 31 | Ala. Ct. App. | 1921

This is a suit on the common counts for goods, wares, and merchandise, sold by the plaintiff to defendant, and appears to have been commenced in the inferior court of Birmingham in 1911, and appealed to the circuit court of Jefferson county. This is the second appeal to this court. Fries v. Acme White Lead Color Works, 201 Ala. 613, 79 So. 45.

It appears that at the last trial, and in December, 1919, the plaintiff, to meet the defendant's demurrer, amended the complaint, by adding "a corporation," after the name of the party plaintiff. To the amended complaint the defendant filed a verified plea, alleging, among other things, that "this defendant denies that plaintiff is a corporation." To this plea the plaintiff demurred, assigning, among other grounds, that "said plea does not aver that the plaintiff was not a corporation at the time this suit was commenced," and because "said plea does not state sufficient facts to constitute a plea of nul tiel corporation." The demurrers were sustained and the ruling of the court in so doing is made the basis for assignment of error. We do not think that the plea was good in the face of specific demurrers pointing out the objections thereto. While the plea, in the case of Johnson v. Hanover National Bank, 88 Ala. 271, 6 So. 909, is somewhat like the one here, it will be noted that the court declared that it was in substance a plea of nul tiel corporation, and was error to strike it on motion. It would for the same reason have been error to strike the plea in the instant case, as it was not in capable of amendment. But the sufficiency of the plea here is tested by a demurrer, pointing out the insufficiency thereof. The defendant's plea being one sought to conform to the provisions of section 3969, Code of Alabama 1907, it was necessary that the facts pleaded should be in time corresponding to that when the action was brought. Fletcher's Cyclopedia of Corporations, vol. 4, p. 4623; Coates v. Calena et al., 18 Iowa 277. "Whether the plaintiff's corporate existence is questioned by means of a plea in abatement, or by plea in bar, or by answer, the matter should be set out with precision, and should be direct and positive." 5 Enc. Pleading and Practice, p. 88; Northumberland County Bank v. Eyer, 60 Pa. 436. For aught that appears from the plea, the plaintiff may or may not have been a corporation at the time of the filing of the suit, some eight years previous.

Plea 2 is a conclusion of the pleader, and was subject to the demurrer interposed. Empire Clothing Co. v. Robert Johnson Rand Shoe Co., 16 Ala. App. 86, 75 So. 634; Hurst v. Fitz Water Wheel Co., 197 Ala. 10, 72 So. 314.

That the debt was that of another other than the defendant, that of the husband of the defendant, were matters that were admissible under the general issue; hence there was no error in sustaining demurrers to pleas 6 7, and 8.

Under the complaint it was necessary for the plaintiff to recover to prove that the goods were sold to the defendant.

We find no reversible error, and the judgement appealed from is affirmed.

Affirmed.