L. F. Robbins, being indebted to the Bank of Montgomery and other creditors, in various amounts, conveyed in absolute payment of his indebtedness, certain lands, timber rights and saw mills to M- P. LeGrand, Jr., trustee. The trustee had no duties to perform under the conveyance other than to sell, transfer or convey the property, upon the written request of the several creditors.
Under the directions of the owners of this property, including the defendant, M. P. LeGrand, trustee, conveyed the property to J. M. Falkner, trustee, who by the terms of the conveyance was authorized and directed to run the saw mills, for the benefit of the owners, and for this purpose and in connection therewith, was authorized to purchase supplies and merchandise, and carry on a general mercantile business. The plaintiffs sold to Falkner, as trustee, a bill of groceries and mercandise *331which were used as provided by the conveyance, and authority vested in him. The account not being paid, the plaintiffs sued the Bank of Montgomery.
The complaint contains several counts, some counting on express contract for the purchase of the articles of merchandise, and others upon a quantum meruit demand. The defendant filed pleas of the general issue, and also of ultra vires, to the several counts. The plea of ultra vires, among other facts, averred that “defendant was at the time of the said alleged sale, has ever since been and now is a banking corporation organized under the general incorporation laws of the State of Alabama, found in Part IT, Title I, Chapter I of the Code of Alabama. “ The question elaborately argued by counsel and considered by the court at the original hearing, and which led to the reversal of the cause, was whether the defense set up by the plea of ultra vires presented a defense to the counts upon a quantum meruit demand. Upon the application for a rehearing our attention is called to the fact that issue was joined upm a plea of ■ultra vires, which condition of the pleadings was overlooked by us in the former opinion. What was said in that opinion upon the doctrine of ultra vires was nob required to a decision of the case, and the former opinion is withdrawn. We find evidence in the record sustaining the plea of ultra vires upon which issue was joined. The rule prevails, that if issue is joined upon an insufficient plea, and the evidence sustains it, the defendant is entitled to the benefit of the plea. It follows, there was no error in the record available to appellant. A rehearing is granted, the judgment of reversal set aside, and the judgment of the circuit court is affirmed.