Stokes v. Culver

57 Ala. 412 | Ala. | 1876

MANNING, J.

1. The principal question to be decided in this cause is, whether a promissory note and mortgage to secure the payment of it, which were executed in Alabama, to citizens of Georgia, in consideration of guano, or other fertilizer, which was delivered by the seller and accepted by the buyer in the State of Georgia, were void because the fertilizer was not inspected by an inspector of the State of Alabama, in accordance with the act that was then in force on that subject. "We are clearly of opinion that they are not. The inspection law of Alabama had no extra territorial operation. The fertilizer had become the property of the buyer in the State of Georgia, where he accepted it. And if, as his property, he chose to bring it into the State of Alabama, and there use it, without having an inspection made of it — he can not by that means deprive the seller of his right to payment for it. No complaint was made of the article, or of any fraud in the purchase. There was no dispute about the place of delivery, that being proved on behalf of plaintiff and defendant; and the note and mortgage were executed after such delivery.

The charge of the court, upon the evidence, was erroneous.

2-3. The court erred also in sustaining a demurrer to the special plea of Stokes, the defendant in the court below. 'This would not, perhaps, effect a reversal of the judgment if there were no other error, as the defense set up, or rather which might have been made, under the plea could also have been made, and the evidence to support it was received, under the plea of the general issue, non detinet.

The virtue of the special plea does not consist in the fact •that defendant was but the agent in the transactions out of which the suit arose, of the payees of the note and mortgagees, or in the purchase by him as agent at the sale under the power in the mortgage made by him as such agent; but in the fact that the averments of the plea show title to the cotton, under the mortgage, in his principals, and the assertion of such title, and thereby controvert the supposed title upon which the plaintiffs rely to maintain their action of detinue.

The judgment must be reversed and the cause remanded.