E. A. Foy Co. v. Haddock

ANDERSON, J.

The amended bill shows nothing more than an interstate transaction involving the sale and delivery in Alabama of a certain number of feet of lightning rods, to be delivered at the residence of the respondent, and to be used upon his barn, and therefore brings the transaction within the influence of the case of Dozier v. State of Alabama, 218 U. S. 124, 30 Sup. Ct. 649, 54 L. Ed. 965, 28 L. R, A. (N. S.) 264. In discussing this question it was said by Somerville, J., speaking for the court in the case of Ameridan Amusement Co. v. East Lake Co., 174 Ala. 526, 56 South. 961: “It is evident that, had the transaction in question involved no more than the sale and delivery of the machinery by the plaintiff to the defendant in Alabama, it would have been an act of interstate commerce, to which the laws of Alabama are not, and could not be, applicable. But the contract was not for the sale of machinery. It was an entire contract for transporting and assembling (that is, building into a structure) certain materials on the defendant’s premises.”

The bill does aver that the lightning rod ivas placed upon the respondent’s barn the day of the delivery, and was to be paid for when so placed, and that it became an improvement or repair upon said barn, and which was essential to the fixing of a lien upon said barn and lot, and this averment was evidently for the purpose of showing a lien which the bill was seeking to enforce, and not to charge that it ivas to be erected by the complainant under the terms of the contract of sale so as to become an inseparable obligation thereunder, and thus bring the transaction under the influence of the case of Muller v. First Nat’l Bank of Dothan, 176 Ala. 229, 57 South. 762. Nor does the averment that the complainant was to be paid for the rods when placed upon the barn expressly charge or necessarily imply that it was a part of the complainant’s contractual duty to erect the rods upon the barn as a part of the contract of sale and purchase.

As the bill shows an interstate transaction, and does not charge the doing of business in Alabama such as to take it from the protection of interstate matters by doing business in Alabama, it was not. demurrable for failing to aver a compliance with the laws of this state as a condition precedent to a recovery of the purchase price of the rods and the enforcement of a lien for same.

The decree of the chancery court sustaining the demurrer to the bill is" reversed, and one is here rendered overruling same, and the cause is remanded.

Reversed, rendered and remanded.

-Mayfield, Somerville, and Thomas, JJ., concur.