Opinion
3 Div. 529.
October 27, 1921.
Appeal from Circuit Court, Montgomery County; W. L. Martin, Judge.
J. S. Parrish, of Montgomery, for appellant.
The pleas set up the fact that the goods covered by the account were embraced in and sold as a part of an entire contract, which was void. Section 232, Const. 1901; section 3642 et seq., Code 1907, and authorities there cited. Plea 3 set up a good defense.
Weil, Stakely Vardaman, of Montgomery, for appellee.
In the absence from the record of the demurrers, the presumption is that every tenable ground of objection was made. 200 Ala. 351, 76 So. 117. Plea 2 was not good. 190 Ala. 35, 66 So. 684. Plea 3 was subject to the demurrer. 10 Ala. 386; 137 La. 713, 69 So. 148; 31 Cyc. 1360. If certain items are legal, and others illegal, suit may be brought for the legal items, notwithstanding it could not be maintained for the illegal items. 117 Ala. 661, 23 So. 699; 66 Ala. 582; 198 Ala. 383, 73 So. 525; 13 C. J. 515.
The Garland Company, a corporation, sues G. D. Leverett for $250. There are two counts in the complaint. The first is based on an itemized account. The second is on an account stated between plaintiff and defendant or for merchandise, goods, and chattels sold by plaintiff to the defendant. There are three special pleas. They are numbered 2, 3, and 4. Demurrers were sustained by the court to each. These rulings of the court are the only assignments of error insisted on in brief by appellant.
We find in the record no demurrers to pleas 2 and 3. This being true, the court will presume, if the plea is insufficient or defective, that plaintiff's demurrer pointed out the defect by assigning a tenable ground of objection to it. Vogler v. Manson, 200 Ala. 351, 76 So. 117.
Plea 3 is defective in failing to aver that plaintiff's agent was authorized to receive the goods back, and did accept them for plaintiff. There is no presumption from an agent's authority to sell goods that he has authority after the goods are shipped and delivered to the defendant by the plaintiff to receive them back and rescind the sale. Bradford v. Bush, 10 Ala. 386; 31 Cyc. 1360, headnotes 62 and 63.
Plea 2 avers that plaintiff at the time of making the contract was a corporation organized under the laws of the state of Ohio, and at such time was doing business in Alabama in violation of the Constitution and section 3642 of the Code of 1907. This plea is insufficient in failing to allege that the demand sued upon arose in Alabama or the contract for the sale of the goods was made in Alabama, or that it arose out of a transaction made in Alabama. The debt may have been contracted outside of Alabama, or the debt may be the result of an interstate transaction; on such matters the statute and Constitution have no application. Collier Pinckard v. Davis Bros., 94 Ala. 456, 10 So. 86; Vandiver v. Am. Can Co., 190 Ala. 352, 67 So. 299; section 232, Const. 1901; section 3642, Code 1907.
Plea 4, like plea 2, avers plaintiff is a nonresident corporation doing business in Alabama at the time of this transaction, without complying with section 3642 of the Code of 1907. This plea, like plea 2, does not aver where the contract was made, where the debt was contracted, or where the agreement was consummated; it may have been in Alabama, outside of Alabama or partly within or partly without Alabama — interstate. For the transaction to receive the condemnation of the statute it must be in Alabama. The plea must aver it. This plea does not. Collier v. Davis, 94 Ala. 456, 10 So. 86; Vandiver v. Am. Can Co., 190 Ala. 352, 67 So. 299. It may be from the allegations of this plea that plaintiff had a stock of goods in Birmingham, Ala., from which it shipped to purchasers in Alabama under contracts in violation of this law; but this plea does not aver this debt, the basis of this suit, was contracted in Alabama in contravention of the statute. The transactions by this plaintiff with others, though illegal, have no bearing on this alleged cause of action. Vandiver v. Am. Can Co., 190 Ala. 352, 67 So. 299. This plea avers, according to the agreement between defendant and plaintiff's agent, "at time of ordering the items sued for" he ordered other items; that all of the other items (15 barrels of paint) were shipped from Birmingham, Ala., and "without the knowledge or consent of the defendant plaintiff made shipment of the particular item sued upon from Cleveland, Ohio, instead of Birmingham, Ala., although same was purchased at the same time and under the same terms and conditions as the items shipped from Birmingham, Ala.
Thus it appears affirmatively from this plea that the goods, the price for which this suit was brought, were shipped from Ohio direct to the defendant, and not in violation of the statute. If part of the goods sold defendant at the same time by plaintiff's agent were in contravention of the statute, and the part sued for were not, the defendant could not complain at plaintiff separating the legal from the illegal items and suing for and seeking judgment for the price only of those goods which were legally sold and delivered by plaintiff to the defendant. 13 Corp. Jur. p. 515, § 472, par. 13; Wadsworth v. Dunnam, 117 Ala. 667, 23 So. 699; Denson v. Ala. F. F. Co., 198 Ala. 383, 73 So. 525; Pac. Guano Co. v. Mullen, 66 Ala. 582. Plea 4 is defective in failing to aver the debt was contracted in Alabama, and in affirmatively showing on its face that the debt is for items of goods shipped direct from the state of Ohio by plaintiff to the defendant, an interstate shipment. The demurrers pointed out these defects. Vandiver v. Am. Can Co., 190 Ala. 352, 67 So. 299; Ware v. H. B. Shoe Co., 92 Ala. 145, 9 So. 136; 13 Corp. Jur. p. 515, § 472, and authorities hereinbefore cited.
The court did not err in sustaining demurrers to pleas 2, 3, and 4.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.