Ala. Nat. Bank v. Parker & Co. , 146 Ala. 513 ( 1906 )

WEAKLEY, C. J.

The circuit court committed no error in sustaining the demurrer to plaintiff's replication to the special plea, which set up, as a defense to the notes sued on, a failure to have the hags of fertilizer tagged as required by law. The plea showing the notes rested on a void contract, the replication of bona fide purchase for value without notice was no answer to it. — Hanover National Bank v. Johnson, 90 Ala. 549, 8 South. 42. The burden of proof to sustain the special plea rested upon defendants. The plaintiff was not required as a part of its case to disprove the plea. The notes did not disclose any violation of the law, neither was there any illegality in the contract for the future delivery of the fertilizer. The plaintiff’s evidence, coupled with the introduction of the notes, if believed by the jury, made out a prima facie case for the plaintiff, and entitled it to recover upon each and-every note, unless the jury Avere reasonably satisfied, from the evidence, of the truth of the averments of the special plea. —9 Cyc. 762, § 13; 15 Am. & Eng. Ency. Law (2d Ed.) 1016; Wadsworth v. Dunham, 117 Ala. 661, 671, 23 South. 699; McCurry v. Gibson, 108 Ala. 451, 460, 18 South. 806, 54 Am. St. Rep. 177. The circuit court, therefore, committed an error in placing the burden of proof in respect of the plea upon the plaintiff, as it did by giving charges 2 and 3, requested by the defendant.

The suit was brought upon several notes given for independent deliveries of fertilizer; and A\diile a Avant of a tag upon a single sack Avould, upon the principles declared in Wadsworth v. Dunham, 117 Ala. 661, 23 South. 699, defeat a recovery upon the note of Avhich that sack formed in part the consideration, yet this would not serve to defeat a recovery upon the other notes. Inquiry-should be directed to the question of legality vel non of the consideration, in whole or in part, of each note, apart from the others.

The original contract of purchase for future delivery of the fertilizer Avas free from legal objection, and the agreements to pay money evidenced by the notes were separate and distinct, made for separate deliveries, and on different dates. Vitiation of one might result without- destroying the validity or efficacy of the others. It was erroneous to charge the jury that if one sack of the fertilizer did not have the tag attached to it, as required by law, when delivered to the defendants at Albertville, the verdict must be for the defendants. This, in effect, asserted that a failure to tag a single sack would defeat all the notes, although the jury might believe that every note but one was free from illegality or consideration.

The plaintiff’s evidence tending to show that all of the sacks were tagged when placed in sealed cars at Birmingham, the jury might after that infer that the tags remained on the sacks when the cars were opened at Albertville and delivery made. There Avas evidence for the defendants tending to show that each car at the time of delivery had in it one or more sacks without tags. The controversy of fact thus presented Avas for the jury. There Avas no presumption, to be declared by the court, that the tags placed on the sacks at Birmingham remained on them at the time of delivery, and the court did not err in refusing, on plaintiff’s request, to charge that such presumption existed. The fertilizer having been bought by the defendants f. o. b. the cars at Albert-A'ille, the contract was executory until the commodity Avas deli cored to the purchasers at the point of destination. The carrier became tin seller’s agent to deliver, and until delivery there AA’as no sale. — Brown v. Adair, 104 Ala. 652, 10 South. 439.

It may be that the special plea should be construed as aA’orring that all the sacks of fertilizer Avere Avithout the necessary tags, and that the averment Avould not be established by proof that one or more sacks, less than all, did not have the tags attached at the time of the sale. The plea is capable of amendment, before another trial, so as to conform it to the particular eAddence on which the defendants Avent to the jury, and thus avert any claim of Ararianee. As the judgment must be reversed on other grounds, Ave do not find it necessary to decide whether, upon this record, the plaintiff Avas entitled to the affirmative charge because of the variance, as claimed by counsel for appellant.

. The foregoing disposes of the questions of importance argued by counsel, and will serve as a sufficient guide upon another trial.

Reversed and remanded.

Haralson, Dowdell, and Denson, JJ., concur.