Renfro & Andrews v. Loyd , 64 Ala. 94 ( 1879 )

BBICKELL, O. J.

Tbe action was commenced before a justice of tbe peace, and was founded on a promissory note made by tbe defendant, payable to tbe plaintiffs, dated tbe 15th day of April, 1873, for tbe payment of $78.23 on tbe 1st day of October, 1873, with interest from date.' Tbe cause was removed into the Circuit Court, and the defendant there filed several pleas the fourth of which avers, that the consideration of the note was a fertilizer, manufactured in, or imported into the State, and sold by the plaintiffs to the defendant, which had not been inspected, stamped or branded, as required by the second section of the act of the General Assembly, entitled “ An act to protect the planters of this State from imposition in the sale of fertilizers,” approved March ’/d, 1871. To-this plea the plaintiffs demurred, assigning eight several causes of demurrer. The material causes are, that the plea is defective in hot averring that the sale was made in this State ; and that it is vague and indefinite, not averring any specific facts which show a failure on the part of the plaintiffs to cause the inspection, stamping, or branding the fertilizer.

That there can be no recovery of the price of a fertilizer sold within this State, which was not inspected, branded and stamped, as required by the second section of the statute referred to in the plea, was settled in Woods v. Armstrong, 54 Ala. 150. The first section of the act required the governor to appoint an inspector of fertilizers for the State at large; who had the power to appoint sub-inspectors, in such counties as the governor may have designated. The inspector or sub-inspectors were required, by the second section of the law, in their respective counties to inspect all fertilizers, and to stamp or brand the packages thereof with his name as inspector, and the name of the county in which it was inspected. The plea negatives a compliance with this section. There is no room for intendment, or presumption,— no necessity for it. The averment is express, that the consideration of the note was the price of a ton of fertilizer, either manufactured in this State, or imported into it, and that it had not been inspected, branded or stamped, as was required by the second section of the law. There was no reference to the jury of a question of law — of what was required by the second section of the statute — as is supposed by counsel There was a mere denial that certain acts, required by that section, and essential to the validity of the contract, had been done.

The statute had no extra-territorial operation. It did not affect the validity of a sale of a fertilizer not inspected, made in another State, to a citizen of this State. — Stokes v. Culver, 57 Ala. 412. While this is true, we are not prepared to pronounce the plea defective, because it contains no averment that the sale of the fertilizer was made in this State. If the sale was not in this State, the fact was as completely within the knowledge of the plaintiff as within that of the defendant, and was tbe matter of a replication to the plea. Time and place, where material facts may have occurred which form the matter of pleas, are not introduced into any of the forms of pleas given by the Code; and pleas analogous to the forms are declared sufficient.

The judgment is affirmed.