Culberson v. American Trust & Banking Co.

HARALSON, J. 1. The special pleas, — 2 and 6,— set up the defense, that the payee of the note sued on was a foreign corporation, and had not complied with the constitution (Art. XIV., Sec. 4.) and statute of the State (Code, § 1209) in respect to carrying on or doing business in this State. The plaintiff filed two special replications to these pleas, designed to be, and which are “brief statements in plain language of the facts relied on as answer to the plea.” — Code, § 2688. These replications are confessions of the facts relied on in the pleas, to avoid the note sued on; and are themselves in avoidance of the facts so pleaded, as applicable to this case,in that they set up that the consideration of the note sued on was the purchase by defendant from a corporation created by the laws of Georgia and residing and doing business in Atlanta, of certain articles of com [464] merce, subject to the jurisdiction of Congress to regulate. — Lee v. DeBardeleben Coal Co., 102 Ala. 628. These special replications were not intended, as supposed, to cure defects in, and to serve the purpose of an amendment to the complaint, and therefore, a departure from it, but set up, as was allowable, a fact relied on as an answer to the pleas. — Herring v. Skaggs, 73 Ala. 452 ; Eskridge v. Gill, 51 Ala 245. The replications set up, in' subtstance, that certain books and copyright of abstract forms, then in Atlanta, in the State of Georgia, were sold in Anniston, Alabama, by the inter-State Abstract Company, a corporation residing and doing business in Atlanta, Georgia, to the defendant, the American Trust and Banking Company, and were afterwards shipped from Atlanta by the seller, to the purchaser in Anniston, and the note sued on, — transferred by the seller to plaintiff, — was given for the purchase price of said books and abstract forms. The only remaining question on the appeal is, whether these books and abstract forms were articles of commerce, the sale of which is within the jurisdiction of Congress under its power to regulate commerce among the several States. We can discover no reason for holding that the articles sold like any other goods, were not articles of commerce. In the case of Robbins v. Shelby County Taxing District, 120 U. S. 489, it was declared that “the business of selling goods which were in Ohio at the time of the sale, and were, at a future time to be delivered to the purchaser in the State of Tennessee, constituted inter-state commerce.” It seems also that making of a contract in Colorado, to manufacture machinery in another state, to be there delivered for transportation to the purchasers in Colorado, is commerce, falling within the jurisdiction of Congress.— The Cooper Man’f’g. Co. v. Ferguson, 113 U. S. 727. And, following these decisions, we not long ago held, that where a lot of shoes manufactured in St. Louis, Mo., were sold and shipped to a merchant in Alabama, the transaction was interstate commence, without reference to the fact whether the contract for the purchase of the shoes was made in Alabama, or in St. Louis, and that the provisions of the constitution, and the act of the legislature did not apply to such a transaction. Ware v. Hamilton-Brown Shoe Co., [465] 92 Ala. 148. These adjudications, so directly in point, control this case, .and compel its affirmance. The case of Merriman v. Knox, 99 Ala. 94, is not an authority as supposed by counsel for appellant, against the ruling of the lower court in this case. In that case the replication was held to be bad, in “not denying that the sale was made in this state, or that there was a failure to comply with the requirements of the statute.” In the replication before us, which counsel regardas parallel with the one in the Merriman case, the replication states, plainly enough, that the sale was made in Anniston, Ala., of the articles of commerce which were in Atlanta, Ga. Affirmed.