Opinion
8 Div. 941.
October 27, 1931. Rehearing Denied November 17, 1931.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.
Action on promissory note by the Night Commander Lighting Company against Addie Vest. From a judgment for plaintiff, defendant appeals.
Affirmed.
Certiorari denied by the Supreme Court in Vest v. Night Commander Lighting Co., 139 So. 297.
Pleas 5, 9, and 10 are as follows:
"Fifth. That the note sued on was given for the purchase price of a lighting plant, and, as a part and parcel of the agreement for the sale of the plant and the execution of the note, it was agreed between the parties, acting through themselves or their duly authorized agents, that said note was to be credited with the sum of fifteen dollars ($15.00), for each and every sale thereafter made by plaintiff of such lighting plant he could aid in securing; that thereafter plaintiff sold a large number, to-wit, twenty (20) of said lighting plants to persons defendant aided in securing, and he offers to set off said sum of three hundred dollars ($300.00) as against the demand sued on."
"Ninth. That there was a failure of consideration, in that, the note sued on was given for the purchase price of a 100 pound capacity Michigan Pit Model D Generator and appliances; that in and by the contract of purchase, it was stipulated and agreed by plaintiff that said generator was to be a thoroughly good galvanized steel generator. Defendant alleges said generator was not a thoroughly good galvanized steel generator, but was insufficient and inadequate for the purpose for which it was sold to defendant by plaintiff. That said generator was wholly worthless and the defendant was unable to use the same with any success or satisfaction and was caused to expend much time and money in an effort to employ the same for the purpose of generating a light and the operation of said plant and to his damage in the sum of three hundred dollars ($300.00), and he now offers to set off said sum as against the demand of the plaintiff.
"Tenth. That there was a failure of consideration, in that, the note sued on was given for the purchase price of a light generator and appliances; that in and by the agreement of purchase, it was represented, stipulated and agreed by plaintiff that said generator was a thoroughly good generator and adequate for the purposes for which it was selling same to the defendant and for the uses he was to put it in and about the operation of a light plant; that said generator was not a good generator and was not adequate for the purposes for which it was sold by plaintiff to the defendant, but was wholly inadequate and worthless, and without value."
Lynne Lynne, of Decatur, for appellant.
It is not necessary to aver whether the warranty was in writing or by parol. Warren v. Cash, 143 Ala. 158, 39 So. 124. Where there is a breach of the warranty of soundness, it is sufficient to allege unsoundness without describing the specific defects constituting unsoundness. Stone v. Watson, 37 Ala. 279; Hessel v. Johnson, 70 Wis. 538, 36 N.W. 417; 35 Cyc. 446; Goodenough v. Snow, 27 Vt. 720; Scruggs v. Riddle, 171 Ala. 350, 54 So. 641; In re Simmons Est., 48 Misc. Rep. 484, 96 N.Y.S. 1103; Cowee v. Cornell, 75 N.Y. 91, 31 Am. Rep. 428; Consumers' Coal Co. v. Yarbrough, 194 Ala. 482, 69 So. 897. All the acts done or words spoken pending the doing of a particular act, and which tend in any way to illustrate or give character to the act, are receivable in evidence or part of the res gestæ. Ward v. Lane, 189 Ala. 340, 66 So. 499; LaFayette R. Co. v. Tucker, 124 Ala. 514, 27 So. 447. No foreign corporation may do business in this state without having at least one known place of business and an authorized agent therein, and without filing certified copy of its articles of incorporation. Const. 1901, § 232; Code 1923, § 7209. A contract of a foreign corporation which has not complied with the corporation laws is invalid. Power Spec. Co. v. Michigan Power Co., 190 Mich. 699, 157 N.W. 408. A single act constitutes doing business. A corporation which executes a contract for the sale of machinery located in another state, for its transportation to this state, and for the furnishing of labor and material to assemble or construct it in this state, is doing business in this state. Farrior v. N.E. Mtg. Sec. Co., 88 Ala. 275, 7 So. 200; Ala. W. R. Co. v. Talley-Bates Con. Co., 162 Ala. 396, 50 So. 341; Mullens v. Mtg. Co., 88 Ala. 280, 7 So. 201; Amer. Am. Co. v. East Lake C. Co., 174 Ala. 526, 56 So. 961. Labor is not an article of commerce, nor the agreement to supply it, nor the execution of the agreement, an act of commerce. Amer. Am. Co. v. East Lake C. Co., supra. Whether or not a corporation is doing business within the meaning of the statute is a question of fact for the jury. Oakland S. M. Co. v. Wolf Co. (C.C.A.) 118 F. 239; Bouldin v. Taylor, 152 Tenn. 97, 275 S.W. 340.
Melvin Hutson, of Decatur, for appellee.
Brief did not reach the Reporter.
The defendant, who resides in Alabama, entered into a written contract with plaintiff, who is a foreign corporation, whereby plaintiff was to deliver to defendant f. o. b. Jackson, Mich., a certain lot of lighting apparatus set out and described, and for which defendant agreed to pay $358 cash or to give his negotiable note due in six months, without interest. As a part of said contract it was stipulated: "It is also fully agreed that no agreement is binding between the Night Commander Lighting Company and the purchaser herein, except as provided in this contract, and that this contract covers all agreements expressed or implied between the Night Commander Lighting Company of Jackson, Michigan, and the purchaser subject to the approval of said Night Commander Lighting Company at its executive office at Jackson, Michigan; and that this contract is not subject to countermand except purchaser pays, as the liquidated damages thereon, one-half the purchase price specified herein." At the time of the signing of the above contract, defendant signed another contract with D. E. Treadwell, who acted as the agent of plaintiff in procuring the above contract, which later contract with Treadwell provided for: "Construction, erecting, installing and equipping said lighting plant at Falkville." This contract was introduced in evidence but is omitted from the transcript. The lighting apparatus contracted to be delivered, was delivered by plaintiff to the Cincinnati Northern Railroad Company, a common carrier, at Jackson, Mich., consigned to defendant at Falkville, Ala. Upon arrival at Falkville the apparatus was erected as designed, by one Mitchell who had been sent to do the work by Treadwell. Defendant paid Mitchell $26 for installing the plant and, in accordance with the terms of the contract entered into with plaintiff, executed and delivered to Mitchell for plaintiff the note which is the foundation of this suit.
In the absence of the contract entered into between defendant and Treadwell for the installation of the lighting plant, this court must presume that such evidence as was therein contained was sufficient to justify the trial court in its refusal to give the general affirmative charge at the request of defendant. Sherman v. Good, 21 Ala. App. 546, 109 So. 893.
The facts as above stated and shown by the record, show without dispute that the sale of the apparatus by plaintiff to defendant was an interstate transaction and governed by the laws governing interstate commerce. In the making of the sale to defendant, as shown by the contract, plaintiff was not required to qualify to do business under section 7209 et seq., Code 1923.
We have no means of knowing the terms and contents of the contract made by defendant and Treadwell for the installation of the lighting plant sold by plaintiff to defendant, and we, therefore, presume that there was nothing in that contract which attempted to vary the terms of the contract of sale, which expressly provided that: "This contract covers all agreements expressed or implied." Moreover, as has been recently said by Brown, J., in Holczstein v. Bessemer T. S. Co. (Ala.Sup.) 136 So. 409, 414: "It is familiar law that in the absence of fraud in procuring the signature to a written contract by misrepresenting or concealing its contents, it cannot be impeached by proving a different contemporaneous agreement, or because the party signing was ignorant of its legal effect."
In accord with the views herein above expressed, it is unnecessary for us to decide what effect the contract made by defendant with Treadwell had upon the plaintiff's right to do business in this state, there being no evidence connecting plaintiff with that contract and it affirmatively appearing that plaintiff had fulfilled its part of the contract of sale when it delivered the lighting plant to the railroad company at Jackson, Mich., consigned to defendant. In this connection, however, we cite the case of Puffer Mfg. Co. v. Kelly, 198 Ala. 131, 73 So. 403, as stating the rule governing sales in this state by foreign corporations. In line with that case the excerpts from the charge of the court, "The mere fact that it requires labor to set it up would not make it a local contract," and, "If the chief business is to sell and accept orders and ship same knocked down then the assembling alone would be a mere incident," were free from error.
Appellant insists that the court committed error in sustaining plaintiff's objection to the question: "Now when this plant, outfit, was delivered there, the pipe they sent you, did the plaintiff cut that and fit it in the ground to your house and in your house?" The court permitted evidence that in the installation of the plant, pipe was cut, ditches dug, and holes bored in the house. As to whether it was done by plaintiff was a question of fact and the question called for a conclusion on this point.
Plea 10 was faulty and subject to demurrer for that the plea shows that the consideration of the note was for a light generator and appliances and the only allegations as to a failure of value is as to the generator which may or may not have constituted a small part of the appliances sold. Moreover, we think the allegations in the plea, "Was not a good generator and was not adequate for the purposes for which it was sold by plaintiff to defendant," were too general.
Plea 9 is faulty in that it does not sufficiently allege a warranty and its breach. For one thing it is not sufficiently alleged for what purpose it was sold to defendant.
The charge and rulings of the court on questions arising under the fifth plea were free from error. If, under the plea, defendant aided in the making of a sale of plaintiff's lighting plants to others, he was entitled to $15 on each such sale. If no sale was made defendant was not entitled to anything. The court so ruled, and in such rulings there was no error.
We find no error in the record, and the judgment is affirmed.
Affirmed.