International Cotton Seed Oil Co. v. Wheelock

124 Ala. 367 | Ala. | 1899

SUABLE, J.

— Section 4207 of the Code provides that “A foreign or domestic corporation may be sued in any county in which it does business by agent.” The plea in abatement calls for a construction of that statute with reference to the facts relied on to sustain the plea. Those facts are undisputed and are substantially, that the defendant is a domestic corporation engaged in the business of buying cotton seed and manufacturing and selling its products and having its principal place of business at Selma, Dallas county. Within the twelve months next.before this suit was begun and afterwards during the same month, the defendant had been áccustomeci to quote its prices for goods to brokers .in Birmingham, Jefferson county, upon their request and upon orders received from them, had made frequent sales of goods to persons in Birmingham. Those orders were subject to defendant’s approval and were accepted in Selina and the goods Avere generally shipped direct to the purchaser to whom the bill of lading was sent with a sight draft attached. When as sometimes happened goods were rejected by the person to whom they were shipped, defendant notified the broker who made the bargain to take charge of and sell them for its account. Defendant had no contract with any broker to represent it permanently or exclusively, the authority of the broker making a sale being limited to that transaction.

As was held in Farrier v. New England Mort & Sec. Co., 88 Ala. 275, a single transaction may constitute the doing of business. But neither a single nor several transactions occurring prior to the suit are conclusive to show a continuance of such business at the bringing of the suit. The statute contemplates continuity of the condition at that period. The corporation though previously doing business in the particular county may have discontinued such business, in which case it is not subject to suit there in the class of actions to which the statute applies. — Sullivan v. Sullivan Timber Co., 103 Ala. 371. Continuity may be inferred however as existing at the time of suit, from a course of business pursued before and proximately thereafter. The question being one of mixed law and fact no general rule can be determinative of it in all cases.

Instances where brokers were employed by defendant to take possession of and resell goods rejected by customers after their shipment are not shown to have been at such time and of such frequency as to justify the inference that defendant was doing business in that way at the time the suit was brought.

. Not every act done within the corporate powers will constitute the business meant by the statute. In Sullivan v. Sullivan Timber Co., supra, this court construing this statute approved the test laid clown in Beard v. U. & A. Pub. Co., 71 Ala. 60, where in defining the acts of business meant by the constitutional requirements of foreign corporations doing business in this State it was said: “There must be a doing of some of the works or an exercise of some of the functions for which the corporation was created to bring the case within the clause.” In applying that test it may not always be easy to distinguish between acts done in the exercise of corliorate functions and those done merely within corporate powers.

In the case at bar the chartered purposes of the defendant are not disclosed by the record except as they may be inferred from the business in which it was engaged. From the proof on that subject it appears that the sale of its products is as much an exercise of defendant’s corporate functions as is their manufacture. The disposition of products is ordinarily a function necessary to the continued operations of a manufacturing corporation. The question however is not merely whether business was done, but whether it was done by agent. A broker is sometimes and for some purposes considered the agent of both buyer and seller but his agency in that sphere, is a narrowly limited one. We need not consider.the authority of brokers generally since the proof defines that possessed by the defendant’s brokers. Their part in the business done by the defendant in Jefferson county was to transmit mutual propositions between the defendant and its vendees. If the transaction had proceeded no further than by this preliminary step, no sales would have been effected and no actual business would have been done. What was done thereafter in consummation of the sales, namely the final agreement, the delivery of goods and the collection of the price, was the material part of the business and was effected independently of the brokers’ services and not by them as agents.

We are brought to the conclusion that the facts in evidence sustain the plea in abatement. A judgment will be here rendered reversing the judgment of the city court, sustaining the plea in abatement, and that the defendant go hence without day and have and recover of the plaintiff its costs.