#### Ala. Nat. Bank *v.*C. C. Parker & Co.

*Assumpsit.*

(Dec. 19, 19907.

45 So. Rep. 161.)

1. *Agriculture; Fertilizers; Sales; Notes; Pleas;*Sufficiency.— Where the fertilizer was delivered in car load lots and notes given upon the arrival of each car load, a plea to an action on all the notes that when the fertilizer was delivered, the sacks, or some of them in which it was contained, were not tagged as required by law, was insufficient as it is not made thereby to appear that untagged sacks were contained in each of the several shipments.

2. *Same*— tinder section 386, Code 1896, it is a complete defense, to an action on notes given for the sale of fertilizer that the fertilizers for which they were given were not tagged as required by law.

3. *Same; Evidence.*— Where, under the evidence, the sale was com-, píete on the arrival of the fertilizer at a certain town the time of' such arrival determines whether or not the absence of tags bars *598the right of recovery for the fertilizer, and it is permissible to show the absence of proper tagging when the seal of the car was first rightfully broken, and also to show that tags were properly attached at the shipping point and the car sealed, as shedding light on whether or not the statute was complied with.

Appeal from Marshall Circuit Court.

Heard before Hon. W. W. Haralson.

■. Action by the Alabama National Bank against C. C. Parker & Co. From a judgment for defendants, plain - 1 iff appeals.

Reversed and remanded.

• For ¡pleadings and facts in this case, see former report, 146 Ala. 573, 40 South. 987.

. George 1). Motley, and A. G. & E. D. Smith, for appellant.

Demurrers should have been sustained to defendant’s amended pleas 1 and *1%.*— Ala. *Nat. Bank v. Parker & (Jo.,*146 Ala. 513. The original contract of purchase for future delivery of the fertilizer was free from legal objections. — Authority supra. If the contract is innocent and in carrying it into effect a violation of the law arises, either by ignorance or mistake, the contract remains good, although the offender may lie punished for a violation of the *law.*— Branch *Bank v. Cocheron,*5 Ala. 250; *Whetstone v. Branch Bank,*9 Ala. 875. The facts that some of the tags became detached in transit did not render the sale *void.*— Holt *v. Navasso Guano Co.,*114 Ga. 666; 7 Cyc. 749. Prima facie, the notes were good and the defendant had the burden of showing what part of them were *illegal.*— Wads-*worth v. Dunham,*117 Ala. 661. The contract was sever-able, and the parts untainted will be *enforced.*— Simms *v. Ala. Brew. Co.,*132 Ala. 311. The bank was a bona fide holder without *notice.*— Wildsmith *v. Tracey,*80 Ala. 261; *Capital City Ins. Co. v. Quinn,*73 Ala. 560; *Blackmon v. Lehman,*63 Ala. 550; *Wetumpka v.*TFe*tumpka Wharf Co.,*63 Ala. 612; *Schneider v. Shiffmah,**599'20 N. Y. 570; *Brown k. 1st Nat. Bank,*103 Ala. 123; *Bozeman v. Allen,*48 Ala. 512; *Winston v. Westfelt,*22 Ala. 760. Where the contract is illegal for other reasons, than that it involved moral turpitude, ignorance of the illegality of the contract on the part of the party seeking relief has been held a strong ground for granting it. — 12 A. & E. Ency. of Law, 1005; *M. & O. Ry. Co. o.*Dismúkes, 94 Ala. 131; *Hotchkiss v. Dickson,*2 Bligh (Eng.) 348; *Congress, eta. Spring Go. v. Knowlton,*103 U. S. 49; *Pullman Gar Go. v. Gent. Transp. Go.,*65 Fed. Bep. 158; *Musson v. Fales,*16 Mass. 332; *Roys v. Jolmson,*7 Gray (Mass.), 162; *Gerber v. Wabash R. Go.,*63 ■Mo. App. 145; *Beram v. Oruscal,*18 Misc. (N. Y.) 479; *Miller v. Hirschberg,*37 Pac. 85; *Burkholder v. Beetem,*65 Pa. St. 496.

Street & Isbell, for appellee.

Conceding that appellant was a bona fide purchaser, still the defense of “no tag” was available against *it.*— Hanover *Nat. Bank v. Johnson,*90 Ala. 549; *Ala. Nat. Bank v. Parker & Go.,*146 Ala. 513. The oral charge of the court was correct. *—Kirby v. Huntsville Pert. Go.,*105 Ala. 529; *A la. Nat. Bank v. Parker, supra.*

McCLELLAN, J.

— On former appeal of this case *(Ala. National Bank v. Parker,*146 Ala. 513, 40 South. 987) it was ruled that, though the elements constituting one a bona fide purcaser for value and without notice are present, in an action on a note given for fertilizer sold in this state, such matter is unavailing as an answer to a plea setting up the absence of tags on fertilizer sold in violation of section 386 of the Code of 1896, and, further, that the considerations underlying the several notes sued on were separable, and that the . partial or entire illegality of consideration of one or more of the *600notes would not defeat a recovery on those not so tainted. The effect of the holding urns to fix the status of the litigation as practically presenting for trial five distinct causes of action, and, if so, the pleadings should have been addressed accordingly. Indeed, in this opinion in this case it was said: “Inquiry should be directed to the question of legality vel non of the consideration, in whole or in part, of each note, apart from the others.”

Amended plea No. 1, directed against the five causes of action, alleged “that the considerations for said notes was commercial fertilizer sold to defendants by Helm Bone Fertilizer Company in the state of Alabama; that at the time of delivery of said fertilizer the bags, or some, of them, in which it was contained, were not tagged with, a tag with the words printed thereon 'Guaranteed Ala-, bama Tag Tax 5 Cents/ as required by section 882 of the Code of 1896.” Amended plea 1% was identical with amended plea No. 1, except after the word “contained” there was added the words “and constituting the consideration of said notes.” Demurrers by plaintiff to these pleas raised the objection that it did not appear that untagged sacks were contained in each car; the respective notes being based, for .consideration, upon car consignments. This objection was well taken. It is too manifest to admit of doubt that these pleas could be maintained by proof of an absence of tags on any part of the-fertilizer contained in the entire 'quantity delivered to-defendants. For instance, the presence of untagged sacks, at the time of delivery, completing the sale, in the first and fifth cars, would, under these pleas, entitle the defendant to his judgment, notwithstanding the second, third, and fourth cars containd only tagged sacks. The pleas, as stated, purport to set forth matter in bar of a recovery on all the notes; yet under the law controlling the determination of the rights of the parties to the liti*601gation, in order to obtain that result, it was necessary that one or more sacks in each car should have been untagged. The pleas do not charge the absence of tags on sacks contained in each car, but their absence from, in the alternative, some of the sacks constituting the entire quantity sold to defendant. The demurrer should have been sustained.

Plea 1, which is the same as amended plea 1, except after the word “bags” the words “some of them” are omitted, unquestionably avers that the subject of the sale, the entire 156 tons bought, was untagged. Of' course, this plea was not defective. If sustained in the proof, it was a complete defense to a recovery on all the notes. Under the contract in this case, the transportation of the fertilizer to Albertville, properly consigned and the freight paid, and its arrival thereat, was a compliance on the part of the seller with his obligation, and the sale was then *complete.*— Capehart *v. Furman Farm Imp. Co.,*103 Ala. 671, 16 South. 627, 19 Am. St. Rep. 60. It is to this time the absence of tags, to bar a recovery under the conditions we have stated, must be referred. Of course, testimony that the tags were properly attached at Birmingham and the cars sealed, and, on the other hand, the absence of proper tagging when the seal of the car or ears was first rightfully broken, and that to remove their contents, tend to establish the fact vel non of compliance with the statute. — Code 1896, § 386.

The former opinion in this case and this should certainly suffice for guides on another trial, to which end, for the errors stated, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Tyson. (\ J., and Dowdell and Anderson, JJ., concur.