The majority opinion is rested largely on the case of Lee v. Intendent Town Council of LaFayette, 153 Ala. 675,45 So. 294, 295, in which the appellant was convicted of violating a city ordinance of the Town of LaFayette, which provided: "* * * It shall be unlawful for any person, firm or corporation to engage in or carry on any business in the town for which a license is required without having paid the clerk the amount required by law and taken out license as herein provided. The price of license shall be as follows: For each sewing machine, clock, stove or range company, selling sewing machines, clocks, stoves or ranges, either themselves or by their agents, and for each person who engages in the business of selling sewing machines, clocks, stoves or ranges, twenty-five dollars; * * *."
It appears from the statement of facts that on the 9th day of May, 1907, E. N. S. Lee, a citizen of the United States and of the state of Virginia, by using a wagon and team furnished to him by said company for such purpose, delivered a range in the original packages to Y. L. Burton, a citizen of LaFayette, Chambers County, Alabama, the order for which had been previously obtained in LaFayette, Alabama, by one of said salesmen and accepted by said company. Said range, so delivered, was stored in a temporary warehouse of said company at LaFayette, Ala., in the original package in which it was shipped from St. Louis, at the time said order was taken by said salesman and accepted by said company, and said range was delivered in LaFayette, Alabama, in said original package as aforesaid. The agreed statement of facts further shows that in no event and under no circumstances, however, are any ranges sold or offered for sale at said warehouse, nor are any ranges delivered or offered for delivery at said warehouse, nor are any ranges delivered to purchasers, except in the original packages, as aforesaid. Said warehouse is always located at some point in the State of Alabama while said salesmen are operating in said state and is frequently changed from one place to another in order to facilitate the delivery of ranges in the immediate section of the state in which said salesmen may be operating.
This court construed the agreed statement of facts in Lee's case as showing that the salesmen mentioned in that case were commercial brokers, as appears from the statement in the opinion that, "The case made by the agreed statement of facts does not differ materially from that of Stratford v. City Council of Montgomery (110 Ala. 619, 30 So. 127), * * *." Said salesman, *Page 465 under well settled law, represented the purchaser for whom they placed orders.
In the case at bar, the evidence shows without dispute that the plaintiff had a state agent, resident in Alabama, to whom it paid a salary and who as such agent paid the rent on a permanent warehouse procured by the plaintiff's only distributor, defendant in the case, for their joint use. That flour in original packages was shipped by the plaintiff to itself and stored in said warehouse and when the distributor paid for the last previous 100 barrels of flour, accepted, used and sold it to the trade, the plaintiff's agent, who kept a key to the warehouse, delivered to said distributor another 100 barrels of flour, the delivery being made in or at the warehouse. Until said delivery was made the title to the flour remained in the plaintiff.
In the light of these facts, I am of the opinion that, this constituted doing business in Alabama and that the judgment of the trial court should be affirmed. I, therefore, respectfully dissent.