Opinion
4 Div. 674.
November 21, 1918.
Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.
Lee Tompkins and A. E. Pace, all of Dothan, for appellant.
B. F. Reid, of Dothan, for appellee.
Action of trover and detinue by the trustee in bankruptcy of a corporation against the alleged fraudulent purchaser of goods of the corporation. Whether the transaction in virtue of which defendant, appellee, came into possession of the goods, purported to be a sale by the corporation directly to defendant in satisfaction of a debt due from one of the stockholders to defendant, or whether a sale of its goods by the corporation to its stockholder in consideration of the surrender of his stock, it being understood that the goods were to be sold to appellee in discharge of his indebtedness to the stockholder — and clearly the transaction amounted to one or the other — the transaction, not being the formal act of a meeting of the stockholders nor yet concurred in by all the individual stockholders, was a nullity and conveyed no title as against the corporation, and this regardless of the bona fides of the transaction and though it may have been authorized by officers of the corporation. 1 Morawitz, Corp. § 516; 1 Cook, Corp. § 285. No question of apparent agency is involved. Beyond question defendant understood the transaction in every detail. But if it may be said that defendant did not know whether the Shop of Quality, whose goods he got, was a corporation or a partnership, that is a matter of no consequence; for in addition to being required by law to know whose goods he was getting, he knew in fact that he was getting the goods of the Shop of Quality, and, assuming that he may have thought it a partnership, one partner cannot pass the title to partnership property by appropriating it to the payment of his individual debt. Sampson v. Fox, 109 Ala. 662, 19 So. 896, 55 Am. Rep. 950; Burwell v. Springfield, 15 Ala. 273. Hence our conclusion that, on the undisputed evidence, plaintiff was entitled to the general affirmative charge.
In view of possible variations in the evidence on another trial, we deem it proper to say further that the testimony to the effect that plaintiff had once had possession of the goods in suit, and had turned them over to defendant in pursuance of an order of the federal court, shed no light upon the question of title, the only question involved, and may have very seriously prejudiced plaintiff's case in the mind of the jury.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and THOMAS, JJ., concur.