Hanover National Bank v. Johnson

McOLELLAN, J. There was no error in overruling the motion of plaintiff to strike out the plea of nul tiel corporation. The plea was held to be sufficient on the former appeal in this case, and it could not be vitiated by the subsequent-enactment of the statute requiring such pleas to be verified. The statute should not be given a retroactive effect, so as to destroy the efficacy of steps already taken in a pending suit, though, as it relates only to the remedy, it would operate upon proceedings taken after its passage in a cause then pending. The fact of the corporate existence and capacity of the plaintiff was, we think, proved, or, at the least, there was evidence adduced tending to establish it; so that the general charge for the defendant, which the court gave, can not find justification in the supposed absence of evidence on this point. The case made by this record is not materially different from that presented on the former appeal, in respect to the place of the contract — whether made in this State or not— and we adhere to the conclusion then reached, that it was an Alabama contract, and void for non-compliance with the statute requiring certain classes of fertilizers to be analyzed and tagged before being sold, or offered for sale here; the statute, in express terms, declaring that “ a sale or exchange of fertilizers not so tagged is void.” — Code, § 141; Johnson v. Hanover National Bank, 88 Ala. 271. The note sued on, issuing out of, and resting on a contract thus expressly declared to be absolutely void, can not be enforced even by a Iona fide purchaser for value without notice and before maturity. — 2 Rand. Com. Paper, §§ 517, 534, 557; 1 Dan. Neg. Instr., § 197; Byles on Bills, pp. 137-146. The general charge, finding justification in the position last taken, it is unnecessary to determine whether the stipulation of the paper for the payment of “ all costs of collection, including ten per cent, attorney’s fees,” destroys its negotiability. We may remark, however, that the authorities are in irreconcilable conflict on the point, with probably a preponderance in number and weight of argument supporting the proposition, that such stipulations involve such uncertainty and contingency as to the amount to be paid as destroys negotiability. The following are some of the cases which so hold: Bank v. Bynum, 84 N. C. 24; Bank v. Jacobs, 73 Mo. 35; Johnson v. [553] Speer, 92 Pa. St. 227; Maryland F. & A. M. Co. v. Joseph, 60 Md. 584; Bank v. Larsen, 60 Wis. 206; while the following, among others, adopt the contrary view: Nickerson v. Sheldon, 33 Ill. 372; Goar v. Banking Co., 11 Bnsh (Ky.) 180; Hubbard v. Harrison, 38 Ill. 323. [But see the next case below, Montgomery v. Crossthwait.] The judgment of the Circuit Court is affirmed.