Bowdoin v. Alabama Chemical Co.

The two questions presented for decision are: (1) Whether a contract of sale of commercial fertilizers made without the seller's first having taken out a license as required by the statute is void; and (2) if it is void, did the contract in this case between Austin Gentry and the Alabama Chemical Company or the Dothan Chemical Company create the relation of principal and agent as regards the sale of the fertilizer in question?

The rule in this state is that, if a statute was not designed to prohibit the making of contracts without previous compliance with statutory provisions, but was intended merely to provide revenue, it is not void if no specific prohibition or penalty is provided or imposed. If the conditions of the statute were made for the benefit of the public, and not for the raising of revenue only, an agreement is void that does not comply with the statutory conditions. Sales-Davis Co. v. Henderson-Boyd Lumber Co., 193 Ala. 166, 69 So. 527; Sunflower Lumber Co. v. Turner Supply Co., 158 Ala. 191, 48 So. 510, 132 Am. St. Rep. 20; Merriman Co. v. Knox, 99 Ala. 93, 11 So. 741; Woods Co. v. Armstrong, 54 Ala. 150, 25 Am. Rep. 671; Shippey v. Eastwood, 9 Ala. 198; Smith v. Mawhood, 14 Meeson Wellsby Ex. Rep. 452; Citizens' National Bank v. Buckheit, 14 Ala. App. 511,71 So. 82; Talladega Fert. Mfg. Co. v. Farmers' Union Warehouse Co., 2 Ala. App. 307, 56 So. 595.

In the adoption of the statutes in question (Acts 1907, p. 744; Code of 1907, art. 2, c. 2, § 25, p. 228 et seq.) the legislative intent and primary purpose was to protect the public against being sold worthless or deleterious compounds represented as commercial fertilizers, and not merely to raise revenue.

The codification of the Act of August 14, 1907, with section 2 thereof made section 25 of the Code of 1907, and with the omission therefrom of section 378 as it formed a part of the Code of 1896, does not show that the provisions of said section 25 were intended primarily for raising revenue, and not for the purpose of protecting the public in the purchasing of commercial fertilizers. Nor does the insertion in the Code of 1907 (as section 6884) of the provision of the act, making it a misdemeanor to sell or exchange commercial fertilizers without having obtained a license from the Commissioner of Agriculture and Industries, as provided by law, show that the statute in question was framed for revenue purposes only. On the other hand, it is obvious therefrom that the purpose was to protect the public, as we have stated. When the codification of the several provisions of the act was completed, finding appropriate place in article 2, c. 2, § 6884, a complete system for the regulation and sale of commercial fertilizers was provided, with the specific intent of protecting the public from the buying of worthless, comparatively worthless, or deleterious substances sold as commercial fertilizers. Talladega Fert. Mfg. Co. v. Farmers' Union Warehouse Co., supra.

The court committed no error in overruling demurrers to the several pleas properly presenting the defense that such sales were made without first having procured a license as provided by statute. For replication (No. 2) to such pleas, plaintiff said:

That at the time of said sale Austin Gentry Lumber Company was "acting for Alabama Chemical Company, and that said fertilizers belonged to the said Alabama Chemical Company, and that the said Austin Gentry Lumber Company had a contract with the said Alabama Chemical Company to sell said fertilizers for it and on its account, and under contract the note or notes given therefor were to be transferred and assigned to the said Alabama Chemical Company, and the plaintiff avers that the said Alabama Chemical Company had a license issued by the commissioner of agriculture and industries to sell fertilizer in Alabama."

The third replication was in like words, with the exception that the Dothan Chemical Company is averred to have been the principal for whom Austin Gentry Lumber Company acted as agent in making said sales. There was no error in overruling the demurrer thereto.

Under this pleading it was a question of agency, to be determined from the evidence submitted on the issue.

The testimony of B. J. Austin, and the contract of date February 14, 1914, together with the fertilizer license for 1913-14 issued by the commissioner of agriculture to the Dothan Chemical Company, were properly admitted in evidence. Furman Farm Imp. Co. v. Long, 113 Ala. 203, 21 So. 339.

The affirmative charge requested by defendant was properly refused, as a jury question was presented. Amerson v. Corona Coal Iron Co., 194 Ala. 175, 69 So. 601. If the charge was requested on the ground of a variance as to where the agency resided, whether in Austin Gentry, or in Austin Gentry Lumber Company, that question was not brought to the attention of the court in an appropriate way when the request was made. New Circuit Court Rule, No. 34 (175 Ala. xxi); Bickley v. Porter, 193 Ala. 607, 69 So. 565; Southern Railway Co. v. Jordan, 192 Ala. 528, 68 So. 418.

The assignments based on the refusal of defendant's charge numbered 2, not being insisted upon in the brief and argument of counsel, are not considered. Georgia Cotton Co. v. Lee, 72 So. 158;¹ Republic I. S. Co. v. Quinton, 194 Ala. 126, 133,69 So. 604.

The judgment entry as to waiver of exemptions is as follows:

"And it appearing to the court that in the note the foundation of this suit the defendant waived his right of exemptions under the Constitution and laws of the state of Alabama, it is ordered that the defendant be allowed no exemptions as against this judgment and the execution to be issued thereon, and the clerk will indorse such waiver of exemptions on the execution in this cause."

The failure of the judgment to limit the waiver of exemptions to personalty, as provided in the notes introduced in evidence, was not called to the attention of the court, and therefore we will not reverse the judgment. The judgment is here corrected so as to limit the waiver of exemptions to personal property, and as thus corrected it is affirmed.

Corrected and affirmed.

ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.

¹ 196 Ala. 599.

On Application for Rehearing.