93 So. 641 | Ala. | 1922
Lead Opinion
The sheriff's return imports verity and cannot be contradicted or impeached in the action in which it was made. Ingram v. Ala. Power Co.,
The defendant interposed a plea to the venue, to which the plaintiff filed a replication setting up a clause in the note authorizing suit to be brought in Montgomery county, which this court has heretofore held was binding on the defendant. Thompson v. U.S. Guano Co.,
Pleas 2 and 3 set up the fact that the plaintiff belonged to an unlawful trust, or combination, for the purpose of controlling prices at the time of the sale of the goods for which the notes were given. We are cited to Code 1907, § 7579. This section and its successors, as appearing in chapter 273 of the Code, are directed against pools and monopolies, and a punishment is there prescribed in the nature of a fine against the offending person or corporation; but we find nothing prohibiting such person or corporation from selling its goods or invalidating the contracts. The contract between this plaintiff and defendant was collateral to the agreement set up between the plaintiff and other members of the trust, or combination, and the illegality of the latter is not visited upon the former. Conally v. Union Sewer Pipe Co.,
We know of no law, and are cited to none in this state, which requires that the fertilizer license should be under seal, and which was the only ground of objection assigned to the introduction of the plaintiff's license.
It is next insisted that from aught that appears, the fertilizers for which the notes were given were sold prior to the date of the license. In other words, that the plaintiff did not prove a license at the time the sale was made. True, when a license is brought into question the burden of proof is upon the one who should have the license to establish same, but the license was issued in December, 1919, the notes were May, 1920, and from aught that appears the consideration for the notes was contemporaneous with the execution of same. If the fertilizer was sold prior to the making of the notes and before the license of December, 1919, it was incumbent upon the defendant to prove this fact. The fact that the notes recite that the fertilizer for which they were given was tagged, branded, etc., did not indicate that the fertilizer was sold and delivered prior to giving the notes so as to prevent the same from being but one transaction. Moreover, Evans testified as to a business transaction with the defendant in 1920.
We doubt if the appellant's counsel's allusion to the first assignment of error amounts to such an argument, or insistence, as to merit consideration. It is sufficient, however, to suggest that the trial court did not err in refusing to quash the return.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
All Justices concur in the opinion except SAYRE, J. He concurs in the reversal of the case because there was no specific ground of demurrer pointing out any defect in the said rejoinder, but prefers to not commit himself to the sufficiency of same against an appropriate demurrer.
Concurrence Opinion
The decisions in Thompson v. U.S. Guano Co.,
"The general principle on which this decision was made to rest was that it was not within the province of parties to enter into an agreement concerning the remedy for a breach of contract, which is created and regulated by law."
Our venue statutes (Code, § 6110 et seq., and section 6116, authorizing change of venue) prescribe the regulatory law within the rule of the principle quoted ante from the Nashua-Hammermill Case.
The complaint declared on several instruments as "promissory notes," without setting out their entire terms. Under our practice, a plaintiff may, of course, so declare on *600 "promissory notes." If, however, the contractual stipulation that suit might be brought thereon in Montgomery county — a county in which defendant was not and never has been resident (Code, § 6110) — is valid, and if that stipulation is an element of the contract evidenced by these instruments, it is evident that these instruments are something more than "promissory notes," the character of instrument declared on; and that, if the beneficiary of the instruments' obligation would avail of this feature of the contract, he should have undertaken to assert it in his initial pleading. On the other hand, if the stipulation is collateral only — contingent upon circumstances that may or may not intervene to afford condition or occasion for recourse to the stipulation's assurance — then some consideration for the defendant's surrender or waiver of his right, established by law, to be sued in the county of his residence, should have been averred in plaintiff's reply to defendant's plea in abatement. The demurrer to plaintiff's replication to defendant's plea in abatement numbered 2, pointing the objection that the replication averred no consideration moving to defendant for his agreement to suit in a county other than that of his residence, should have been sustained, not overruled as was the erroneous action taken. Of such a stipulation, Judge Shaw said, in Hall v. Ins. Co., 6 Gray (Mass.) 192:
"Even if such a stipulation is of any legal force, it isan executory contract only. * * *" (Italics supplied.)
It could not be specifically enforced in this action. Hall v. Ins. Co., supra. The only theory upon which, in this action, effect could be accorded the stipulation, is that for a consideration the defendant had theretofore divested himself of the legal right to be sued in the county of his residence. Nowhere in plaintiff's pleading was a consideration for this deprivation or surrender averred, thereby rendering the plaintiff's pleading demurrable.