This is a detinue suit by the Starr Piano Company, a corporation, against M. Zavelo for one seven-passenger Mitchell touring car. This is the second appeal in this case; the former is reported in
The defendant pleaded general issue and four special pleas numbered 4, 5, 6, and 7. Demurrers of plaintiff were overruled by the court to each of the special pleas, and the plaintiff filed two special replications, numbered 2 and 3, to each of these special pleas. The court sustained demurrers of the defendant to the two replications. There was judgment in favor of the defendant. This appeal is by plaintiff on the record proper, without bill of exceptions, from that judgment; and these rulings of the court adverse to plaintiff on the pleadings are the errors assigned.
To maintain detinue for the automobile, the general rule is the plaintiff must own it, or be clothed with the legal title to it, and have the right to the immediate possession of it. The plea of general issue admits possession of the property by defendant at the commencement of the suit, and denies the title to it and the right of possession of it by the plaintiff. Whatley v. Taylor,
In plea 4 the defendant avers that at the time of said sale or contract "the defendant was not authorized to do business in Alabama." The defendant should have averred "the plaintiff" instead of "defendant" was not authorized to do business in Alabama. This was a clerical error, unintentional and self-correcting from the clear purpose of the plea. Wilson v. McElroy,
All of the four special pleas aver the automobile was sold by plaintiff to the defendant by contract of conditional sale. It was made and to be performed in Birmingham, Ala., where the property under the conditional sale contract was delivered to the defendant by the plaintiff, and at that time plaintiff was engaged in the business of dealing in automobiles in Birmingham; this contract of conditional sale was a part of its regular course of business there; and that plaintiff is and was then a foreign corporation, with its domicile in the state of Indiana. Plea 4 then avers that said contract of conditional sale is void, because plaintiff had not filed its appointment of an agent for the service of process, and had not described the agent and place of business as is required by section 3642, Code 1907.
Plea 5 avers a noncompliance by plaintiff, before making the conditional sale contract, with the requirements of sections 3647 and 3648, Code 1907.
Plea 6 avers a noncompliance by plaintiff, before making the conditional sale contract, with the requirements of section 232 of the Constitution of Alabama.
Plea 7 avers a noncompliance by plaintiff, before making the conditional sale contract, with the requirements of section 2651, Code 1907.
The plaintiff demurred to each of these pleas on the following among other grounds:
"It appears from the averments of said plea that the alleged conditional sale of the automobile was void, and plaintiff not having parted with the title to the automobile, it is entitled to recover the same in this action."
The defendant by pleas 4 and 6 avers facts attempting to show the contract of conditional sale of the automobile by the plaintiff to the defendant is void by reason of the noncompliance by plaintiff with the requirements of the statute and section of the Constitution respectively mentioned hereinbefore in each.
The question here is: Where is the legal title to the automobile, in the plaintiff or the defendant? The demurrers do not clearly raise the question whether this contract is void for noncompliance by plaintiff with section 3642, Code 1907, and section 232 of the Constitution. Conceding — which we *Page 371
do not even intimate is true — without deciding (see Sherwood v. Alvis,
Plea 5 avers the contract of conditional sale is void, because the franchise tax was not paid and certificate filed by plaintiff as provided by sections 3647 and 3648, Code 1907.
Section 3649 provides:
"All contracts made in this state by any foreign corporation which has not first complied with the provisions of the two preceding sections [3647 and 3648, Code 1907] shall, at the option of the other party to the contract, be wholly void."
One defect, and there may be others, in this plea, is the defendant fails to clearly allege that, as a party to the contract of conditional sale of the automobile, he does and has exercised his option, his right to declare it void. Section 3649, Code 1907. And if we construe the plea as an exercise by him of the option to claim the contract is void, then this plea, like pleas 4 and 6, is insufficient, condemned by the rule, supra, in Boulden v. Estey,
Plea 7, like plea 5, is insufficient and condemned by the rule in Boulden v. Estey,
"All contracts, engagements, or undertakings or agreements with, by, or to such corporation, made without obtaining such permit, shall be null and void."
If the contract of conditional sale is void as alleged in this plea, then the title to the automobile would be in the plaintiff with the right to its possession, under the authority of Boulden v. Estey,
The court erred in overruling demurrers of plaintiff to these pleas numbered 4, 5, 6, and 7. They should have been sustained by the court. Boulden v. Estey,
For the errors mentioned, the judgment is reversed and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and THOMAS, JJ., concur.