Opinion
8 Div. 780.
February 18, 1937. Rehearing Denied March 18, 1937.
Appeal from Circuit Court, Madison County; Paul Speake, Judge.
Cooper Cooper, of Huntsville, for appellant.
The contract as altered was one whereby appellant manufactured and furnished the marble and thereafter delivered same to the contractor, and the erection and installation of said marble was performed by a separate and distinct corporation. The suit is to recover on the contractor's bond the value of the marble so sold. Missouri Fidelity Casualty Co. v. Art Metal Const. Co. (C.C.A.) 242 F. 630; Armstrong v. American Exch. Nat. Bank, 133 U.S. 433, 10 S.Ct. 450, 33 L.Ed. 747; General Electric Co. v. Fort Deposit, 174 Ala. 179, 56 So. 802; Sales-Davis Co. v. Henderson-Boyd Lumber Co., 193 Ala. 166, 69 So. 527; Ellis v. Batson, 177 Ala. 313, 58 So. 193; Leverett v. Garland Co., 206 Ala. 556, 90 So. 343; Covey C. O. Co. v. Bank of Ft. Gaines, 15 Ala. App. 529, 74 So. 87; Id., 200 Ala. 695, 75 So. 1003. The decree in the case of Gray-Knox Marble Co. v. Times Bldg. Co., 225 Ala. 554, 144 So. 29, is not res adjudicata of the issues involved in this cause, in that none of the parties to this cause were parties in said suit. Gray-Knox Marble Co. v. Times Bldg. Co., 225 Ala. 554, 144 So. 29; Jones v. Adler, 183 Ala. 435, 62 So. 777; Aetna Ins. Co. v. Hann, 196 Ala. 234, 72 So. 48; Lange v. Hammer, 157 Ala. 322, 47 So. 724, 725; Davis v. Morgan, 206 Ala. 576, 91 So. 318; Clark v. Whitfield, 213 Ala. 441, 105 So. 200.
Benners, Burr, McKamy Forman, of Birmingham, and Taylor Richardson, of Huntsville, for appellees.
If the complainant in the former suit is the same as the beneficial plaintiff in this case, then the rights of plaintiff have been adjudicated and the fact that its claim is based upon an illegal and unenforceable contract is res adjudicata, and the corporation is estopped from again setting up its claim based upon the same facts or contract. 21 R.C.L. 1091; 50 C.J. 92, 93; State v. Parker, 72 Ala. 181; Hill v. McKenzie, 39 Ala. 314; Interstate Co. v. Fidelity Co., 228 Ala. 210, 153 So. 427, 429; U.S. v. American Surety Co. (C.C.A.) 56 F.(2d) 734; Bigelow v. Old Dominion Min. Co., 225 U.S. 111, 32 S.Ct. 641, 56 L.Ed. 1009, Ann.Cas. 1913E, 875. The claim sued on is void and unenforceable because based upon and growing out of an attempt to enforce an illegal contract of a foreign corporation not qualified to do business in Alabama. Gray-Knox Marble Co. v. Times Bldg. Co., 225 Ala. 554, 144 So. 29. If plaintiff employed Gray-Knox Marble Company of Delaware to install the marble, this would not render legal the contract made by plaintiff with the contractor. Alabama W. R. Co. v. Talley-Bates Const. Co., 162 Ala. 396, 50 So. 341.
The contract which is the basis of this suit was considered and construed in the case of Gray-Knox Marble Co. v. Times Building Company, 225 Ala. 554, 144 So. 29. It was there held that the sale of the marble included, as one and an inseparable part thereof, the installation of same by the seller so as to involve an intrastate transaction, and that the case fell under the influence of American Amusement Company v. East Lake Chutes Company, 174 Ala. 526, 56 So. 961; George M. Muller Manufacturing Co. v. First National Bank of Dothan, 176 Ala. 229, 57 So. 762; General Railway Signal Co. v. Commonwealth of Virginia, 246 U.S. 500, 38 S.Ct. 360, 62 L.Ed. 854, and was unlike the transactions involved in Puffer Manufacturing Co. v. Kelly, 198 Ala. 131, 73 So. 403; York Manufacturing Co. v. Colley, 247 U.S. 21, 38 S.Ct. 430, 62 L.Ed. 963, 11 A.L.R. 611; Cobb v. York Ice Machinery Corporation, 230 Ala. 95, 159 So. 811. We are still of the opinion, and so hold, that the contract in question was not simply a sale of the marble so as to be protected as an interstate transaction, but involved the installation of same and the doing of acts quite similar to those involved in the case of George M. Muller Manufacturing Co. v. First National Bank of Dothan, supra.
It is suggested by appellants' counsel, upon this appeal, that some confusion has arisen owing to the existence of three corporations of similar names, to wit: "a Gray-Knox Marble Company, a corporation organized and existing under the laws of the State of Delaware — the Appellant in this cause; (2) There is a Gray-Knox Marble Company of Delaware, a Delaware corporation, which is not a party to this cause; (3) There is a Gray-Knox Company of Tennessee, which was the complainant in the suit of Gray-Knox Marble Company v. The Times Building Company * * * in equity — and not a party to this suit," evidently referring to the case reported in 225 Ala. 554, 144 So. 29. Regardless of the suggestion of confusion, it is manifest that the corporation that sold Cline the marble did so by one inseparable contract agreed to and did install the same in the Times Building, and said installation involved doing business in this state as brought out in the George M. Muller Manufacturing Co. Case and other cases, supra. And it appearing that said corporation had not qualified to do business in this state, the trial court did not err in rendering judgment for the appellee, and the judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.