The writer concurs in the reversal of the judgment; but, upon the different ground to be stated.
The action is by the appellee against the appellant, seeking recovery upon promissory notes purported to have been executed by the latter to the former. In all of the counts of the complaint it is alleged:
"The plaintiff further avers that in and by said note the defendant agreed that all suits for the collection thereof should be prosecuted in Montgomery county, state of Alabama."
No demurrer was interposed to the complaint.
The only response to the complaint filed by the defendant, denominated "a plea in abatement," reads:
"Comes the defendant, Coston-Riles Lumber Company, a corporation, and appears specially for the purpose and purpose only of pleading in abatement of this suit. Comes the defendant, and for its plea in abatement of this action says that the plaintiff ought not to be allowed to further prosecute this action brought against this defendant in this court or in this county for that the defendant is a domestic corporation organized under the laws of Alabama with its chief place of business in the city of Bessemer in Jefferson county, Ala. That the defendant corporation is not now and has not heretofore done business in the county of Montgomery by agents. That its principal place of business and the place where it does business in this state by agents is in the city of Bessemer in the county of Jefferson and in the state of Alabama; and that it is suible (suable) in the county of Jefferson and in the Bessemer division of the circuit court of Jefferson county, Ala.; and it is not suible (suable) on this action in the county of Montgomery.
"The defendant denies that it as a body corporate ever agreed that all suits for the collection of the note sued on in this action should be prosecuted in Montgomery county in the state of Alabama; and that no person, officer, or agent had any authority in fact or in law to bind this defendant by any writing or otherwise that all suits for the collection of the note sued on herein should be prosecuted in Montgomery county in the state of Alabama. Wherefore the defendant prays that this action brought by the plaintiff against the defendant be abated, and the defendant be allowed to go hence and recover its costs of the plaintiff."
No demurrer to the defendant's plea appears in the original transcript; the minute entry reciting, "issue being joined between the parties upon said sworn plea in abatement."
After hearing upon testimony taken, including the defendant's articles of incorporation, the trial court gave the general affirmative charge in favor of the plaintiff "on the plea in abatement," and refused a like instruction in defendant's favor on the issues tendered by "the plea in abatement."
In Stewart v. Capital Fert. Co., 207 Ala. 596, 93 So. 641,643, 644, where the note declared on was executed by an individual, not a corporation, the writer, in a separate opinion, expressed the view that a stipulation, in such a promise to pay, surrendering or waiving in advance venue (Code, § 6110) of an action on the promise or obligation to pay the sum stated, was a separate and separable stipulation, requiring a distinct consideration, from that afforded by the sum the payor promises to pay, to support the law-established right to be sued in the county of his residence. Ala. Code, § 6110; Nute v. Ins. Co., 6 Gray (Mass.) 174, 181, 182; Hall v. Ins. Co., 6 Gray (Mass.) 185, 192. In City Bank v. Bryan, 72 W. Va. 29,78 S.E. 400, 404, cited in the majority opinion, the West Virginia court expressly ruled that an unauthorized, invalid, somewhat similar stipulation in a note was separable; and that its elimination did not avoid the obligation. Pertinent to this question, Shaw, C. J., wrote in Nute v. Ins. Co., 6 Gray (Mass.) 182, that there is "the distinction between that which is matter of contract and may be a proper subject of consideration, * * * and that which is matter of remedy regulated by law. * * *" In the same connection, in that decision, the learned Chief Justice also observed that a stipulation as to venue of an action to enforce the contract could not "be regarded as a condition of the contract." Nashua Paper Co. v. Hammermill, 223 Mass. 8, 111 N.E. 678, L.R.A. 1916D, 691.
In Stewart v. Capital Fert. Co., 207 Ala. 596, 93 So. 641,643, 644, the question was raised by demurrer to plaintiff's replication. The sufficiency of the present complaint, in this particular, was not tested by motion to strike or by demurrer. No plea to the merits was so interposed as to tender an issue on this separate and separable feature of the contract declared on. The "plea in abatement," reproduced ante, was not tested by demurrer. The hearing proceeded upon the theory that it comprehended the issue whether the stipulation with respect to suits on the contract was ultra vires the corporation; the articles of incorporation being introduced *Page 154 in evidence. It is but trite to remark, in the language of 14 A Corpus Juris, p. 249, that —
"There is this difference, * * * between the powers of a corporation and the powers of a natural person. The latter can do anything not forbidden by law. The former can only do what is expressly or impliedly authorized by its charter."
This distinction pointedly distinguishes the present appeal from that in Stewart v. Capital Fert. Co., 207 Ala. 596,93 So. 641, where the payor in the instrument was an individual. See, also, for pertinent statements, pages 246-251 of 14 A Corpus Juris.
The charter of a corporation, incorporated under general law, includes "any other laws of the state which are made applicable to such corporations." 14 A Corpus Juris, subd. 2094, pp. 258, 259; 14 A Corpus Juris, subd. 2105, p. 265, where it is well observed:
"Such laws [i. e. general laws and police regulations] are to be read into their [corporations'] charters, and they cannot conduct their business in disregard of them any more than an individual may, unless expressly and constitutionally exempted from their operation."
In Tuscaloosa Art Ass'n v. State ex rel., 58 Ala. 54, 59, it was affirmed, Stone, J., writing "that the public have an interest even in private corporations, and in their uses and abuses."
Code, § 6112, provides that a foreign or domestic corporation may be sued in any county in which it does business by agent. This statute, a general law applicable to the corporation-defendant, is to be read into and forms a part of the charter of this corporation. Author, supra. This incorporation was formed under general law, not by special act. Manifestly, this corporation is without any semblance of authority or power to avert or to avoid by contract stipulation the prescription for venue of actions against such corporations made in Code, § 6112, which, as stated, is as much an element of its charter as if the provisions of such section (6112) were actually incorporated in the charter of the corporation. Being so elemental of the charter, neither the corporation itself nor its officers, whatever their rank, could contract in contravention of the statute governing the venue of actions against the corporation. The articles of incorporation of this defendant, set forth in the bill of exceptions, do not contain even a remote or fanciful suggestion or intimation that the corporation was authorized to barter or contract away or surrender the law's express direction with respect to the venue of suits against it.
This corporation being indisputably shown to have been without power or authority to contract in avoidance of the venue statute, the trial court erred in giving the affirmative instruction in plaintiff's favor.
The Legislature, present (1923) session, has so amended the venue statutes as to preclude the surrender or waiver of venue by contract.
On these considerations, I concur in the judgment of reversal.