Illinois Central R. R. v. Avery & Son

67 So. 414, 190 Ala. 241, 1914 Ala. LEXIS 707

Opinion

MAYFIELD, J.

(1) A partnership may sue in its partnership name, provided the names of the members thereof are set out in the summons and complaint. In the case of Hatcher v. Branch, Powell & Co., 141 Ala. 413, 37 South. 690, it was said: “While the suit appears to have been brought in the name of the partnership as plaintiff, still the individual names of the partners composing the firm were set out in the complaint. On the authority of Foreman v. Weil Bros., 98 Ala. 496 [12 South. 815], the trial court properly overruled the demurrer to the complaint on the ground that the suit was brought in the name of the' partnership.”

The demurrer to the complaint on the ground that the suit was in the name of the partnership was properly overruled.

(2) The special contract attempted to be set up as. a defense to the suit, that the claim for damages was not presented to the carrier within 10 days, was void under a long line of decisions in this state. The special pleas, therefore, setting up a breach of the provisions of the contract of shipment, presented no defense,, and the trial court properly sustained demurrer thereto. The authorities on the validity of similar provisions in contracts of shipment and in contracts as to-the delivery of telegrams were reviewed in the cases-of Louisville & Nashville Railroad Co. v. Price, 159 Ala. 218, 48 South. 814, and Nashville, Chattanooga & St. Louis Railway v. Long & Son, 163 Ala. 165, 50 South. 130.

Haralson, J., in the case of Broadwood v. Southern Express Co., 148 Ala. 17, 41 South. 769, speaking of a similar stipulation or provision in a contract of shipment of common carriers limiting liability to 90 days,, had this to say: “The reasonableness vel non of the stipulation of the kind under consideration is one of law for the determination of the court. Whatever may be the decisions of the courts of other states and of the Supreme Court of the United States, this court is committed to the proposition that a contract filing 30 days, as the time within which such claims must be presented, is not reasonable.”

If 30 days is not a reasonable time, then 10 days is. clearly not so, in the absence of some facts going to show that it was reasonable in the particular case; nonesuch being alleged in any of the pleas in the case at bar.

Affirmed.

Anderson, C. J., and McClellan and de.G-rafeenried, JJ., concur.