Keystone Manufacturing Co. v. Hampton

37 So. 552, 141 Ala. 415

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

SHARPE, J.

This suit is to recover a. sum claimed as due on a sale by the plaintiff to defendant of a machine mentioned in the pleadings as a “Keystone Corn Snapper and Fodder Shredder.” Plea. 6 sets up as a defense that the cause of action “was founded upon and grew out of business done by plaintiff in this state, and at the time such business was done, and said sale made, said plaintiff was a. foreign corporation and had no known place of business in this State as is required bv § 4 of Article 14 of the Constitution of Alabama.”

The demurrer, to the plea, was properly overruled. It goes upon the assumption that the plea, purports to show the sale therein averred was such as constituted interstate commerce, but that the sale was; of such character is not disclosed by the plea. Nothing appropriately responsive to. this plea was averred in the replication, and for that, if for no other reason, the replication was subject to the demurrer thereto interposed.

Rulings on requested charges cannot be reviewed for the reason that they are not set out in the bill of exceptions. — Donnelley r. State, 130 Ala. 132.

The overruling of the demurrer to amended plea 5 was erroneous. In that plea it was strongly assumed that- a return of the machine before suit by defendant to plaintiff’s agent who was authorized by plaintiff to receive the machine together with due receipt of the. same by the agent effected a. rescission of the sale. These alleged facts do not necessarily imply an agreement to rescind, or that the defendant elected to, or had a right to rescind the contract, of sale. The plea could and may have been supported by proof short of what was necessary to show a rescission. For this error the judgment must be reversed.

Reversed and remanded.