Ala. Nat. Bank v. C. C. Parker & Co. , 153 Ala. 597 ( 1907 )

McCLELLAN, J.

— On former appeal of this case (Ala. National Bank v. Parker, 146 Ala. 513, 40 South. 987) it was ruled that, though the elements constituting one a bona fide purcaser for value and without notice are present, in an action on a note given for fertilizer sold in this state, such matter is unavailing as an answer to a plea setting up the absence of tags on fertilizer sold in violation of section 386 of the Code of 1896, and, further, that the considerations underlying the several notes sued on were separable, and that the . partial or entire illegality of consideration of one or more of the notes would not defeat a recovery on those not so tainted. The effect of the holding urns to fix the status of the litigation as practically presenting for trial five distinct causes of action, and, if so, the pleadings should have been addressed accordingly. Indeed, in this opinion in this case it was said: “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.”

Amended plea No. 1, directed against the five causes of action, alleged “that the considerations for said notes was commercial fertilizer sold to defendants by Helm Bone Fertilizer Company in the state of Alabama; that at the time of delivery of said fertilizer the bags, or some, of them, in which it was contained, were not tagged with, a tag with the words printed thereon 'Guaranteed Ala-, bama Tag Tax 5 Cents/ as required by section 882 of the Code of 1896.” Amended plea 1% was identical with amended plea No. 1, except after the word “contained” there was added the words “and constituting the consideration of said notes.” Demurrers by plaintiff to these pleas raised the objection that it did not appear that untagged sacks were contained in each car; the respective notes being based, for .consideration, upon car consignments. This objection was well taken. It is too manifest to admit of doubt that these pleas could be maintained by proof of an absence of tags on any part of the-fertilizer contained in the entire 'quantity delivered to-defendants. For instance, the presence of untagged sacks, at the time of delivery, completing the sale, in the first and fifth cars, would, under these pleas, entitle the defendant to his judgment, notwithstanding the second, third, and fourth cars containd only tagged sacks. The pleas, as stated, purport to set forth matter in bar of a recovery on all the notes; yet under the law controlling the determination of the rights of the parties to the litigation, in order to obtain that result, it was necessary that one or more sacks in each car should have been untagged. The pleas do not charge the absence of tags on sacks contained in each car, but their absence from, in the alternative, some of the sacks constituting the entire quantity sold to defendant. The demurrer should have been sustained.

Plea 1, which is the same as amended plea 1, except after the word “bags” the words “some of them” are omitted, unquestionably avers that the subject of the sale, the entire 156 tons bought, was untagged. Of' course, this plea was not defective. If sustained in the proof, it was a complete defense to a recovery on all the notes. Under the contract in this case, the transportation of the fertilizer to Albertville, properly consigned and the freight paid, and its arrival thereat, was a compliance on the part of the seller with his obligation, and the sale was then complete. — Capehart v. Furman Farm Imp. Co., 103 Ala. 671, 16 South. 627, 19 Am. St. Rep. 60. It is to this time the absence of tags, to bar a recovery under the conditions we have stated, must be referred. Of course, testimony that the tags were properly attached at Birmingham and the cars sealed, and, on the other hand, the absence of proper tagging when the seal of the car or ears was first rightfully broken, and that to remove their contents, tend to establish the fact vel non of compliance with the statute. — Code 1896, § 386.

The former opinion in this case and this should certainly suffice for guides on another trial, to which end, for the errors stated, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Tyson. (\ J., and Dowdell and Anderson, JJ., concur.