Kirby v. Huntsville Fertilizer & Milling Co.

BRICKELL, C. J. This suit is founded on a promissory note made by the appellant payable to the appellee, bearing date the first day of May, 1891, for the payment of the sum of fourteen hundred and four dollars on the first day of December, 1891. The defendant interposed several pleas, but the trial was had only on a plea averring that the consideration of the note was the price of commei-cial fertilizers which the appellee sold the appellant, the same not being tagged as required by the statute. The facts as shown by the bill of exceptions are, that the appellee was engaged in the manufacture and sale of commercial fertilizers in this State, having a license from the Commissioner of Agriculture. The appellant by telegram, to which there does not appear to have been a response, ordered.a car load of fertilizers from the appellee. Having occasion to ship a quantity of fertilizér, the appellee caused each sack or package thereof to be tagged as the statute requires, and delivered to a common carrier for transportation. In the .course of transportation the tags from parts of the sacks or packages were lost or destroyed. At a point on the Tennessee river on which the fertilizer was being transported, the appellee sold the appellant fifty-four tons at the price of twenty-six dollars per ton, the aggregate of the price forming the consideration of the note on which the suit is founded. At the time of the sale and delivery, a number of the sacks or packages, probably one third of them, were without tags. The appellant had made sales of all but four tons of the fertilizer, and the notes he had taken from the purchasers, recited that at the time of the sales, the fertilizer was marked and tagged as required by law. The.instructions given and the instructions refused, raised the question whether the appellant was entitled to a recovery. The contract of sale was an entirety, and according to its terms, the consideration is incapable of apportionment on either side. The delivery of a greater or less [532] quantity than fifty-four tons of the fertilizer would not have been performance on the part of-the vendor. The payment of less than the aggregate- price of twenty-six dollars per ton for the whole fifty-four tons would not have been performance on part of the vendee. If any part of an entire contract, or any part of any indivisible consideration is illegal, the whole is void. In express terms, the statute, (Code, § 141), declares that an offer to sell or exchange, or a sale or exchange of commercial fertilizer is void, unless each bag, parcel or package thereof is tagged in accordance with its requirements. In Steiner v. Ray, 84 Ala. 93, the statute was examined, and its purposes and the purposes of the statutes with which it is associated were so fully explained, that we cannot add anything to what is there said. The time at which the tags must be attached, when as is the present case there is a sale, is the time when the right of property changes, when it passes from the vendor to the vendee. Iris not sufficient, will not satisfy the words or purposes of the statute, that at some prior time the vendor may have attached the tags, and that without fault on his part, they may have been iost or destroyed. The loss or destruction renders necessary their replacement before a sale or exchange not offensive to the statute can be made.—Clark’s Cove Guano Co. v. Dowling, 85 Ala. 142; Brown v. Adair, 104 Ala. 652. The notes the appellant had taken from the purchasers to whom he made sales of the fertilizer, were irrelevant and inadmissible. The recital in them that tho fertilizer was tagged referred to the time of the sale to these purchasers, and not to the sale made by the appellee to the appellant. Wichout conflict the evidence showed that parts of the sacks containing the fertilizer were not tagged at the time of the sale and delivery — this fact was undisputed. The sale being an entirety, for an indivisible consideration, was void. The court below erred.in the instruction given, and in the refusal of the instruction requested. Reversed and remanded.