The decisions in Thompson v. U.S. Guano Co., 202 Ala. 327,80 So. 409, and in Brown v. Chemical Co. (Ala. Sup.) 92 So. 260,2 declaring valid provisions of a contract undertaking to authorize action thereon in a county other than that of defendant's residence, constrain the writer to yield to their authority. The writer did not participate in the consideration of those deliverances. If the question was now presented for original decision, the writer would register the conclusion that such provisions are void as against public policy. The reasons, with the adjudged cases, supporting this view, are set forth in Nashua Paper Co. v. Hammermill Paper Co., 223 Mass. 8,111 N.E. 678, L.R.A. 1916D, p. 691 et seq. (Rugg, C. J., writting), reaffirming this deduction of sound principle from the leading case of Nute v. Hamilton Mut. Ins. Co., 6 Gray (Mass.) 174 (Shaw, C. J., writing):
"The general principle on which this decision was made to rest was that it was not within the province of parties to enter into an agreement concerning the remedy for a breach of contract, which is created and regulated by law."
Our venue statutes (Code, § 6110 et seq., and section 6116, authorizing change of venue) prescribe the regulatory law within the rule of the principle quoted ante from the Nashua-Hammermill Case.
The complaint declared on several instruments as "promissory notes," without setting out their entire terms. Under our practice, a plaintiff may, of course, so declare on *Page 600 "promissory notes." If, however, the contractual stipulation that suit might be brought thereon in Montgomery county — a county in which defendant was not and never has been resident (Code, § 6110) — is valid, and if that stipulation is an element of the contract evidenced by these instruments, it is evident that these instruments are something more than "promissory notes," the character of instrument declared on; and that, if the beneficiary of the instruments' obligation would avail of this feature of the contract, he should have undertaken to assert it in his initial pleading. On the other hand, if the stipulation is collateral only — contingent upon circumstances that may or may not intervene to afford condition or occasion for recourse to the stipulation's assurance — then some consideration for the defendant's surrender or waiver of his right, established by law, to be sued in the county of his residence, should have been averred in plaintiff's reply to defendant's plea in abatement. The demurrer to plaintiff's replication to defendant's plea in abatement numbered 2, pointing the objection that the replication averred no consideration moving to defendant for his agreement to suit in a county other than that of his residence, should have been sustained, not overruled as was the erroneous action taken. Of such a stipulation, Judge Shaw said, in Hall v. Ins. Co., 6 Gray (Mass.) 192:
"Even if such a stipulation is of any legal force, it isan executory contract only. * * *" (Italics supplied.)
It could not be specifically enforced in this action. Hall v. Ins. Co., supra. The only theory upon which, in this action, effect could be accorded the stipulation, is that for a consideration the defendant had theretofore divested himself of the legal right to be sued in the county of his residence. Nowhere in plaintiff's pleading was a consideration for this deprivation or surrender averred, thereby rendering the plaintiff's pleading demurrable.
2 Ante, p. 215.