author: BEATTY, Justice. MADDOX, Justice

text:
    BIRMINGHAM-JEFFERSON CIVIC CENTER AUTHORITY v. J. N. HOADLEY, as Director of Department of Revenue of Jefferson County, Alabama, et al.
    80-697.
    Supreme Court of Alabama.
    March 19, 1982.
    Rehearing Denied May 21, 1982.

      John S. Foster of Foster & Conwell and Lawrence Dumas, Jr., William A. Robinson, and Lee E. Bains, Jr. of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Ronald C. Forehand, Asst. Atty. Gen., for appel-lees.
    Edwin A. Strickland, Birmingham, for amici curiae Tom Gloor, Chriss Doss, and Ben Erdreich, as Commissioners of Jefferson County, Alabama.
    James K. Baker, City Atty., Birmingham, for amicus curiae City of Birmingham.
   BEATTY, Justice.

This is an appeal from an order issued in a declaratory judgment action which challenged the constitutionality of Act 80-383, 1980 Ala. Acts, Regular Session, at 519-42. That local Act established the Birmingham-Jefferson County Civic Center Authority and purported to bring together in one act all prior laws relating to that particular civic center.

A number of constitutional challenges were made below, including the charge that Section 106 of the Constitution of 1901 was offended because of a variance between Section 4 of the published local law and Section 4 of the enacted local law. The action was submitted to the trial court on the pleadings, a stipulation of the parties, and an affidavit of the custodian of minutes of the Authority’s board of directors. That court entered an order declaring, inter alia, that the Act was not unconstitutional on any of the several grounds asserted by the plaintiff. Following the denial of post-judgment motions, this appeal ensued.

We have concluded that the court below was in error in its application of Section 106 to these facts, and upon that basis alone the judgment must be reversed.

Alabama Constitution of 1901, Section 106, as amended by Amendment No. 341, provides:

“No . .. local law shall be passed . .. unless notice of the intention to apply therefor shall have been published ... which notice shall state the substance of the proposed law....”

Whether the “substance” of the proposed law was published, or whether there was a material variance in the terms of the advertised version and the enacted version, is the question before us. That question centers upon the method of selection of the non-ex officio members of the Authority’s Board of Directors.

The parties have stipulated to the version of Section 4 which was advertised, and we have examined the relevant portions of Section 4 which were enacted. Each version is reproduced in columnar form for comparison:

Advertised Version:

“The term ‘Legislative Electoral College’ shall mean that group of legislators who shall elect the elective members of the Board of Directors of the Authority, which group of legislators shall consist of the following: Each member of the House of Representatives of the Legislature of Alabama from that representative district in which the county is located and each member of the State Senate from that senatorial district in which the county is situated, voting jointly.
“The affairs of the Authority shall be managed and controlled by a Board of Directors consisting of eleven members. . . .
“Within thirty days after this act, as amended, becomes applicable to the county, the chairman of each of the House and Senate legislative delegation shall send written notice to each member of the Legislative Electoral College, requesting that the Legislative Electoral College elect those members of the Board of Directors of the Authority to be elected by the Legislative Electoral College. As soon as practical after the members of the Legislative Electoral College receive the said letters, the Legislative Electoral College shall elect nine members of the Board of Directors of the Authority.... The election by the Legislative Electoral College shall be by a majority vote of a quorum of the total membership of the said college present and voting. Three members of the Board of Directors of the Authority elected by the Legislative Electoral College shall serve for a term of two years; four members of the Board of Directors of the Authority elected by the Legislative Electoral College shall serve for a term of three years; and four members of the Board of Directors of the Authority elected by the Legislative Electoral College shall serve for a term of four years, as fixed by the Legislative Electoral College, which terms shall commence from the October 1 closest to the date on which they are elected. In the event that nine members of the Board of Directors were not initially elected or the terms of office of such members are not fixed by the Legislative Electoral College, a meeting shall be called in the same manner as hereinabove provided to elect the required additional member or members and to fix the terms of office of all elected members.”. (Emphasis in original publication.)

Enacted Version:

“The term ‘Legislative Electoral College,’ shall mean that group of legislators who shall appoint the non-ex officio members of the Board of Directors of the Authority, which group of legislators shall consist of the following: Each member of the House of Representatives of the Legislature of Alabama from that representative district in which the county is located and each member of the State Senate from that senatorial district in which the county is situated. The Senate delegation members shall jointly appoint five members and the House delegation members shall jointly appoint four members.
“The affairs of the Authority shall be managed and controlled by a Board of Directors consisting of eleven members. One of said members shall be the mayor or chief executive officer of Birmingham, Alabama; at least two additional of said members shall be resident citizens of Birmingham, Alabama; one of said members shall be the President or Chairman of the governing body of the county; and none of said members shall be a member of the Legislative Electoral College....
“As soon as practical after the members of the Legislative Electoral College receive the said letters, the Legislative Electoral College shall appoint nine members of the Board of Directors of the Authority.... The appointments by the Legislative Electoral College shall be by a majority vote of a quorum of the total membership of each house delegation present and voting on the respective appointments to be made by its body. The Senate delegation shall appoint five members and the House delegation shall appoint four members....”

A comparison of these two versions reveals that both provide that the “Legislative Electoral College” consists of;

“Each member of the House of Representatives of the Legislature ... from that representative district in which the county is located and each member of the State Senate from that senatorial district in which the county is situated

In the advertised version, the entire “Legislative Electoral College” was to vote “jointly.” That requirement was not contained in the enacted version; instead, the Senate and House delegations were separated: each separate delegation was to vote “jointly,” but the Senate delegation was to appoint five of the Board members while the House delegation was to appoint only four of the Board members. In other words, although the published bill required that Board members would be elected by the entire Legislative Electoral College, the enacted bill provided that each legislative delegation would act separately, and that the Senate delegation elected one more member than the House delegation. Majority support from both delegations together for each director was changed to majority support from each delegation separately, with one delegation appointing fewer members than the other.

As the trial court aptly noted, the entire Act contains twelve sections, consists of over twenty pages of the volume of 1980 Legislative Acts, and pertains to a variety of subjects. We respectfully disagree with the conclusions of that court, however, that such changes as these, in the total context of the Act, do not constitute material changes.

The Constitutional framers adopted the notice requirements of Section 106 intending that “the essential or material part, the essence, the meaning or an abstract or compendium of the law, was to be given, and not its mere purpose or subject.” Wallace v. Board of Revenue, 140 Ala. 491, 37 So. 321 (1904). Out of the many decisions which have considered that section, four well-defined canons of construction have evolved: (1) the “substance” means an intelligible abstract or synopsis of its material and substantial elements; (2) the substance may be sufficiently stated without stating the details subsidiary to the stated elements; (3) the Legislature may shape the details of proposed local legislation by amending bills when presented for consideration and passage; and (4) the substance of the proposed act as advertised cannot be materially changed or contradicted. State ex rel. Wilkinson v. Allen, 219 Ala. 590, 123 So. 36 (1929). It appears to us that the third and fourth of these canons are in issue here.

We do not doubt that the manner of selection of the governing body of the Authority was a material element of its composition. Was the change in their method of selection a “detail” which the Legislature could alter before ultimate passage? Wilkinson, 219 Ala. at 592, 123 So. 36, answers that question in the negative:

“[T]he substance of the act must be published in advance. It cannot have the desired effect if the publication states details of substantive features different materially from the act as passed. If the details are not published but only the general nature of its substantive features, the public is put upon inquiry as to such details, and bound by a failure to inform itself, continuing through such changes and amendments as may stay within such substantive features as published. But if the publication gives details, the public need not pursue the inquiry further in respect to such details; for the information is complete, and it has the constitutional right to assume that such details will not be materially changed throughout the journey of the bill to its final passage and approval.” (Emphasis added.)

The earlier quoted portions of Section 4 as advertised disclose the details of the selection process of the Authority’s directors. Those details included selection by the entire Legislative Electoral College which would choose all nine non-ex officio directors. It follows that the Legislature was not thereafter free to change those details in any material way. But a change in the very authority by whom those directorships are to be filled, and a change in the number which are to be filled by an altered selection authority, are not immaterial changes, for they go to the very essence of the selection process itself.

In similar eases the method of selection has been held to be a matter of substance. See, for example, Opinion of the Justices No. 67, 246 Ala. 518, 21 So.2d 238 (1945); Parrish v. Faulk, 293 Ala. 401, 304 So.2d 194 (1974). The latter case contains an extensive discussion of the principles discussed herein and their application. We paraphrase from that case: The filling of directorships in the Authority is important, and the authority designated to fill those offices is a matter of substance and not merely a detail which can be changed from the authority designated in the published notice to a different authority not designated in the published notice. Accordingly, our duty compels us to hold that Act No. 80-383 was not enacted in compliance with Section 106 of the Constitution as amended. And because of this holding, it is unnecessary to address the appellant’s other allegations of constitutional infirmity.

The judgment must be, and is, reversed and remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and FAULKNER, JONES, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.

MADDOX, J., dissents.

MADDOX, Justice

(dissenting).

The local circuit judge, after reviewing the evidence submitted on this action for declaratory judgment, found that “[i]n the total context of the act, the change of provisions relating to the persons designated by the law to appoint the Civic Center Board of Directors is not in the judgment of the Court a material change.” I agree with that judgment of the trial court, and I think respectfully that this Court has failed to distinguish between the “substance” of Act 383 and what is a “material” change of a “detail.”

I also think that this Court’s decision will necessarily be construed to hold that if local legislation is advertised at length, it cannot be amended, and if it is amended, even as to “details,” then it will be subject to constitutional attack.

The majority relies very heavily upon this Court’s case of State ex rel. Wilkinson v. Allen, 219 Ala. 590, 593, 123 So. 36 (1929), where the Court did opine:

“If the details are not published but only the general nature of its substantive features, the public is put upon inquiry as to such details, and bound by a failure to inform itself, continuing through such changes and amendments as may stay within such substantive features as published. But if the publication gives details, the public need not pursue the inquiry further in respect to such details; for the information is complete, and it has the constitutional right to assume that such details will not be materially changed throughout the journey of the bill to its final passage and approval.” (Emphasis supplied.)

The Allen court cited no prior decision of this Court for the proposition that a “detail,” as opposed to the “substance” of local legislation, could not be “materially changed,” but even assuming the correctness of the statement of the principle set out in State v. Allen, supra, the inquiry nevertheless is whether there was a “material” change in a “detail.”

Because of my concern about the impact of the quoted statement in State v. Allen, supra, and in view of the fact that the validity of local legislation and “home rule” is of such concern to the people of this state, I examined, in some detail, the proceedings of the 1901 Constitutional Convention and the early decisions of this Court which construe Section 106, and I am convinced that the Court, in State v. Allen, supra, by judicial decree gratuitously added the word “detail” to Section 106 of the Constitution. I do not have to overrule State v. Allen, however, in order to affirm the trial judge in this case; I only have to distinguish it. In State v. Allen, supra, the change of several “details” was held to be a material change. The one change of “detail” here was unimportant, and not misleading.

Since I have questioned the principle of law the majority relies upon so heavily, I first will state the reason for my disagreement with the principle, and then I will state why I think the facts of State v. Allen, supra, are so dissimilar that it is not controlling in this case.

Section 106 only requires that persons affected be notified of the “substance” of proposed local legislation.

Section 106 requires that the persons affected be notified of the “substance” of local legislation; it does not require that local legislation which is amended in the legislative process, especially with regard to matters of “detail,” should be declared unconstitutional.

This Court has correctly stated on more than one occasion that Section 106 requires publication of a local act prior to its consideration by the legislature in order to give persons affected notice “of the substance of the proposed law, of its characteristics and essential provisions, and of its most important features.” Wilkins v. Woolf, 281 Ala. 693, 208 So.2d 74 (1968). (Emphasis supplied.)

Shortly after the Constitution of 1901 was ratified, this Court had an opportunity to discuss the purpose of Section 106 in Wallace v. Board of Revenue of Jefferson County, 140 Ala. 491, 500, 501, 502, 37 So. 321 (1903). The Court, after declaring the act in question to be a local act, stated:

“Being a local act, it could not be constitutionally passed without a compliance with the requirements of section 106, as to notice and proof of notice. This notice by that section ‘shall state the-substance of the proposed law,’ and be published as specified therein, proof of which notice, as required, ‘shall be exhibited to each house of the legislature,’ and spread upon the Journal, and ‘the court shall pronounce void every special, private or local law which the Journals do not affirmatively show was passed in accordance with the provisions of this section.’
“This notice, as is seen, is required not only to be published for the length of time, and in the manner specified, and proof thereon made to each house of the legislature, and spread upon the journals, but it is also required to ‘state the substance of the proposed law.’
“The notice given in this instance was as follows: ‘Notice is hereby given of the intention to apply to the legislature of Alabama for the passage of an act, the substance of which will be to consolidate the city court of Birmingham, the circuit court of Jefferson county, the criminal court of Jefferson county and the chancery court of Jefferson county, into one court with all the powers and jurisdiction now exercised by the courts so consolidated, as well as other powers and jurisdiction, and to provide for clerks of said court and their fees.’
“Section 24, Art. IV of the former Constitution, for which said section 106 is a substitute, provides for a notice to be given of an intention to apply for the passage of a local law, but did not provide what the notice should contain; and simply provided, as to proof, that the evidence of such notice having been given should be exhibited to the legislature, before such bill should be passed. It was silent as to what the journals should show.
“It was held, in construction of this section, that it was not necessary for the legislative journals to show that notice of an intention to apply for the passage of a local law, was given, and that the courts would presume it was given, unless the journals affirmatively showed to the contrary. — Clark v. Jack, 60 Ala. 271; Harrison v. Gordy, 57 Ala. 49.
“It turned out, as is well known, that this provision of the constitution became almost a dead letter, and local legislation in many instances was passed without the required notice. This, it was believed, was a great and growing evil, which needed correction, and it was for corrective purposes that said section 106 was ordained. It was always supposed that the people to be immediately affected by local legislation, ought to have notice of an intention on the part of any one desiring to apply to the legislature for such legislation, which was often sought for private and improper ends, and not for the good of the people at large. Any notice, therefore, which falls short of advising the public of the substance of such legislation, would be deceptive or misleading, depriving those opposed to it, of a fair opportunity to protest against and oppose its enactment.
“The word ‘substance’ as employed in the section cannot be said to be synonymous with ‘subject’ or mere purpose. It means ‘the essential or material part, essence, abstract, compendium, meaning.’— Worcester’s Diet.
“Referring to the debate in the constitutional convention on the section, — as is proper for the sake of interpretation, — it appears that before the motion was put to adopt it, a member arose and stated, ‘Before that motion is put, I would like to ask the chairman of the committee, if the substance of the proposed law means that the law itself, in'substance, shall be published, or that the purpose of the proposed law be published. Would it not be better to strike out “the substance,” and insert “the purpose?” ’
“The chairman replied: ‘The committee did not desire that the community should be misled as to the purpose of the law, and sometimes the caption of the law is very misleading, and it was to obviate advantage being taken of the public in the matter, that it was written as it is.’ The section was then adopted. — Official Report, 41st day. From this it would seem, that it was intended that the essential or material part, the essence, the meaning or an abstract or compendium of the law, was to be given, and not its mere purpose or subject.”

The Court then established two principles, (1) publication of the title to a proposed act may not suffice to give persons affected notice of the “substance of the proposed law,” and (2) the courts were empowered to decide the adequacy of the notice.

In Byrd v. State ex rel. Colquett, 212 Ala. 266, 268, 102 So. 223 (1924), this Court again discussed the purpose of Section 106. The Court stated:

“The Constitutional Convention of 1901 addressed itself to the task of preventing the growing evil of local legislation. By section 104 such legislation is forbidden on certain subjects therein set out. By section 105 is sought to avoid local legislation in cases provided for by general law, or where relief may be had in the courts. Section 106 throws certain safeguards around special, private, or local laws not forbidden by the Constitution. It declares no such law shall be passed unless notice of the intention to apply therefor, stating the substance of the proposed law, shall have been published at least once a week for four consecutive weeks in some newspaper published in the county; that proof of such notice be made by affidavit and spread upon the journals. The courts are enjoined to pronounce void all such laws if proof does not affirmatively appear in the journals. This court has been called upon in numerous cases to construe and enforce these and other provisions governing the passage of laws by the Legislature.
“The same rules of construction obtain in passing upon those provisions as apply to other constitutional limitations upon legislative power. The courts seek to sustain and not to strike down the enactments of a co-ordinate department of the government. If, with the aid of all reasonable intendments, the act can be given effect without violation of the letter and spirit of the Constitution, it will be sustained. All reasonable doubt is resolved in favor of the action of the Legislature. Laws clearly in conflict, however, cannot coexist. In such case the court has the one duty to maintain the Constitution. City of Ensley v. Simpson, 166 Ala. [366], 375, 52 So. 61; Shehane v. Bailey, 110 Ala. 308, 20 So. 359; Zeigler v. S. & N. R. R. Co., 58 Ala. 594.” (Emphasis added.)

In Byrd, this Court enjoined reviewing courts to apply the principle of seeking to “sustain” rather than “strike down” enactments.

Five years after this Court decided Byrd v. State, it released the opinion in State v. Allen, which the majority considers controlling. In State v. Allen, the Court correctly stated the general principles of law, and cited prior precedents to support those principles, as follows:

“Section 106 of the Constitution has been considered many times by our courts, and four well-defined canons of construction have been firmly settled. They are as follows: '(1) That the “substance” of the proposed law means, not merely the subject of it, but an intelligible abstract or synopsis of its material and substantial elements (Wallace v. Board of Revenue, supra [140 Ala. 491, 37 So. 321]; Law v. State, supra [142 Ala. 62, 38 So. 798]); (2) the substance of the act may be sufficiently stated without stating the details which are subsidiary to the stated elements (City of Uniontown v. State ex rel. Glass, 145 Ala. 471, 39 So. 814, 8 Ann. Cas. 320; Law v. State, supra; Mayor, etc., of Ensley v. Cohn, supra [149 Ala. 316, 42 So. 827]); and (3) the Legislature is not inhibited from shaping up and working out the details of local legislation by amending bills when presented for consideration and passage.’ (4) ‘The substance’ of the proposed act, ‘as advertised cannot * * * be materially changed or contradicted.’ First National Bank v. Smith, 217 Ala. 482, 117 So. 38; State ex rel. Hanna v. Tunstall, 145 Ala. 477, 482, 40 So. 135.
“We are concerned here with the third and fourth canons of construction stated above, and their application to the facts of this case. We are confronted with the following questions, therefore: What features of the act constitute its substance within the meaning of section 106, and whether there has been a material change in any portion thereof from the publication.
“The ‘substance’ is said to be the essential and material parts and essence of said proposed law, or an abstract or compendium thereof, such as would give the people affected fair information of what the law is. Christian v. State, 171 Ala. 52, 54 So. 1001; Wallace v. Jefferson County Board of Revenue, 140 Ala. 491, 37 So. 321. It is only such departure from the ‘substance’ as published which is material that will nullify the act.”

219 Ala. at 591-592, 123 So. 36.

In State v. Allen, the Court even follows the principle that while the requirements of Sections 45 and 106 are not the same, the objects are. The Court opined:

“It is said that the purpose of stating the subject in the title is ‘to prevent deception by the inclusion in the bill of matters incongruous with the title’ (Ex parte Pollard, 40 Ala. [77] 99). And ‘while the requirements [of sections 45 and 106] are not identical, yet their objects are, and their similarity suggests the same general line of reasoning in construing them.’ State ex rel. Hanna v. Tunstall, 145 Ala. 477, 481, 40 So. 135, 137.”

State ex rel. Wilkinson v. Allen, 219 Ala. 590, 592, 123 So. 36 (1929).

After making this statement, the Court then states the principle that the majority relies on so strongly:

“To accomplish these objects section 106 of the Constitution requires that the substance of the act must be published in advance. It cannot have the desired effect if the publication states details of substantive features different materially from the act as passed. If the details are not published but only the general nature of its substantive features, the public is put upon inquiry as to such details, and bound by a failure to inform itself, continuing through such changes and amendments as may stay within such substantive features as published. But if the publication gives details, the public need not pursue the inquiry further in respect to such details; for the information is complete, and it has the constitutional right to assume that such details will not be materially changed throughout the journey of the bill to its final passage and approval.” 219 Ala. at 592, 593, 123 So. 36.

The Court cites no precedent for the proposition that “details of substantive features” cannot be “materially changed,” but, of course, the Court did not have to cite any authority. I would point out, however, that the Court in the next paragraph of the opinion makes reference to “substantive features,” not to “details of substantive features.” I shall discuss this in more detail later in this dissenting opinion.

It is quite apparent that I question the correctness of the Allen rule regarding the requirements of Section 106. The reason I do so is simple. After reading the Constitutional debates and the early cases, I think the Allen Court correctly stated the rule in the first part of its opinion when it stated the “substance” of the bill could not be changed, but stated a different rule in the latter portion of the opinion when it stated that the “details” could not be changed. Nevertheless, even assuming Allen correctly states the rule, I am of the opinion that Allen is distinguishable. The Court there said:

“While in the instant case it may be said that some of the differences between the act as passed and as published are of such unimportant detail as not to be materially misleading, we think some of them are not subject to such comment. State v. Lea, 211 Ala. 68, 99 So. 170; Head v. Hood, 214 Ala. 353, 107 So. 854. On the other hand, considering them altogether, we have concluded that some of the substantial features of the published act are materially different from what they are in the act as passed. We are not concerned with the advisability of any of such changes. We are only called upon to determine whether they are materially variant from the substantial features of the bill as published. We think that both the county authorities and private citizens are directly interested in the changes referred to, and that as to such matters there is likely to be a difference of opinion. Being of this opinion, we find it is necessary to declare that the act offends section 106 of the Constitution, and cannot stand.” (Emphasis added.)

219 Ala. at 593, 123 So. 36.

The Court, in this case, in applying the Allen rule that the “details may not be materially changed,” reverts to what I consider to be the correct rule — that the “substantive features” cannot be materially changed. In doing this, it seems clear to me that the Allen Court, either wittingly or unwittingly, used “substantive features” and “details of substantive features” interchangeably.

To apply the rule of Allen literally, as has the majority, I believe puts a legislator in a “Catch 22” situation. If he or she does not publish enough of the act to constitute its “substance,” it is insufficient. If he or she publishes the proposed bill at length, then any detail of substantive features cannot be deleted or changed, even if those deletions or changes in details are the result of public opposition to some of the “details of substantive features.” I just cannot believe that the deliberative process of the legislature can be that restrictive, although I recognize that the Constitution does definitely seek to restrict local legislation. On the contrary, however, I am not unmindful that the concept of “home rule” is much more prevalent today in Alabama, and after this Court’s decision in Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978), the people have specifically, by Constitutional Amendment, empowered the legislature to adopt local legislation in specified areas, has ratified local legislation previously passed, and has provided a vehicle for amendment of prior acts which were designated General Bills of Local Application. See, Amendment 389, Amendment 375, for example.

While the “notice” requirement of Section 106, as amended, has been retained in these amendments relating to local legislation (See Amendment 375), I believe that this Court should not apply literally the Allen rule in view of these latest developments of constitutional law by the people.

The Allen case distinguishable on its facts.

The Allen case, even if authority for the holding here, is distinguishable on its facts. The Allen Court looked at all the provisions of the proposed act it was considering and concluded that the act was invalid. The Court noted the changes made in the act, as follows:

“The points of difference are as follows: In the published draft the judge of the Third division of the municipal court was named as the judge of the new court, and his successors were to be elected by the judges of the circuit court (as the judges of the municipal court are selected); he was not required to be learned in the law, nor was an age limit prescribed; and the Third division of the municipal court was to be abolished, and its records transferred to the Second division (which itself had been abolished). Whereas the act as passed provided that the judge and his successors shall be appointed by the Governor; the Third division of the municipal court was left intact, and not abolished; the judge must be learned in the law, and not less than 25 years of age.
“In the published draft, the jurisdiction of the court was to embrace all suits at law where the amount involved did not exceed $300; whereas the act as passed conferred jurisdiction of all such suits where the amount exceeds $100 and does not exceed $300.
“In the published draft the salary of the clerk was fixed at $2,100 per annum and that of the bailiff at $60 per month; the constables of certain precincts should have authority to execute its process. Whereas in the act as passed the salary of the clerk was fixed at $3,000 per annum, and of the bailiff at $100 per month; the constables were not given power to serve its process, but the sheriff was given such authority.
“The question presented, therefore, is whether the substantial features of the published proposed act were materially changed in its passage.” 219 Ala. at 591, 123 So. 36.

The trial judge in this instance stated in his opinion that he considered the proposed bill as a whole, and after applying all the law, which I assume included the rule of the Allen case, concluded that the changes were not material. After a similar review of the act as published and as enacted, I come to the same conclusion. Former Governor O’Neal and the Justices of this Court, even in Allen, were concerned whether the public might be misled. I cannot believe that the published bill, which provided for the election of members of the board of the Civic Center Authority by the Jefferson County legislative delegation as a whole “voting jointly,” was misleading because the enacted version provides that the senate delegation would appoint five and the house delegation would appoint four. In fact, a liberal construction of “voting jointly” would uphold the act, because the same delegation does “vote jointly” in the enacted version. If we construed the words “voting jointly” liberally, we would hold that the change did not change the fact that the legislative delegation still was “voting jointly.” The manner of the “voting jointly” was changed, but the number of Board members to be elected and the persons voting remained the same. That was not true in Allen. In Allen, not only was the appointing authority changed, but several other changes were made. I read Allen, at most, to speak to the cumulative effect of so many changes in so many different areas of the proposed bill. Amicus curiae argues:

“The substance of the subject bill as published was not set out in general terms but instead, contained the specific details of obtaining membership to the Board by providing for a legislative electoral college consisting of all Senators and all Representatives of Jefferson County voting collectively. Accordingly, the statement of the substance is ‘narrow and restrictive’ and, given such details, ‘the public need not pursue the inquiry further in respect to such details and has the constitutional right to assume that such details will not be materially changed.’
“Act No. 80-383 as passed materially changed such details. The details of the legislative electoral college consisting of all Senators and Representatives voting collectively was removed and other details providing for Senators to elect five members separately and House members to elect four members separately was substituted.
“From the published notice the public had the right to assume that each of its Senators would have a vote on all nine Board members and that each of its Representatives would have a vote on all nine Board members. Instead, the Senators were permitted to vote on only five Board members and the Representatives were permitted to vote on only four Board members. The result is disenfranchisement of the Senators as to four members and disenfranchisement of the Representatives as to five members. The further result is that the Representatives are prevented from voting on a majority of the nine member Board, i.e., the Senators have voting control over a majority of the Board. Certainly, there is no way the public could be held to have anticipated this result from the details published.
“Accordingly, the variances between the details of the bill as published and the details of the Act as passed are of substance, and do amount to material changes and contradictions and cannot constitute mere shaping up and working out of details.”

This argument ignores the statement made by this Court in Calhoun County v. Morgan, 258 Ala. 352, 62 So.2d 457 (1952):

“The publication of the act in extenso does not serve to cause every feature of it to be matter of substance which would otherwise be considered mere matter of detail.... The essence of the inquiry is whether the change from the proposal as published in extenso is material. This principle does not prohibit changes which are not material.”

It must be remembered that the Jefferson County delegation, because of its size, necessarily may not be able to shape up and work out details of local legislation as is true of counties with a single representative and a shared senator. The citizens of Jefferson County must know that compromises sometimes must be made to accommodate the varying interests in “local legislation” affecting Jefferson County. Does this decision mean that the Jefferson County delegation, and other large local delegations, must work out their differences before they advertise their bills? Apparently so. Then what need is there of legislative debate, and what about the concerns of the whole legislature of Alabama, which must vote on local legislation? Is the legislature so strapped that it cannot amend a detail of legislation which a majority of the public it represents might desire? Apparently so. I recognize the concept of “local courtesy.” It was mentioned in the constitutional debates, but since the whole legislature voted on the amendments which are now declared illegal, I must assume that the legislature knew what was published and knew that a change had been made. In any event, I cannot presume that the legislature was consciously trying to mislead the people of Jefferson County by making the changes it did. The evils of local legislation which concerned the Constitutional Convention are not even hinted at in this record.

The Attorney General, in brief, asked some of the same questions I asked:

“If the change made in this piece of local legislation is a material change such as would bring the act into violation of § 106, then what minor changes may the legislature make in local legislation? Is the legislature tied to accepting or rejecting a local bill as published? Certainly it was not the intent of the framers of the Constitution and it has not been the intent of this Court that § 106 be given such a narrow interpretation. We submit that the changes in Act 80-383 were insubstantial and immaterial, and that the Trial Court properly found that in the total context of the Act the change made from the published bill to the adopted Act was not a material one.”

In summary, my study of the debates on Section 106 in the Constitutional Convention convinces me that the majority, ostensibly following precedent, has failed to carry out the intent of the framers of the Constitution. The majority takes one detail from one paragraph in a bill which covers 20 pages of the volume of 1980 legislative acts and applies a “narrow and literal construction” to Section 106. In McGehee v. State, ex rel. Tate, 199 Ala. 287, 290, 74 So. 374 (1916), the Court opined:

“ ‘The Constitution does not proceed upon the theory that all the details of every proposed law will be worked out in advance and without the aid of legislative wisdom. It requires only that the local public shall be advised of the substance of the proposed law, of its characteristic and essential provisions, of its most important features.’ — Christian v. State, 171 Ala. 52, 54 So. 1001.
“A narrow and literal construction would destroy all power of amendment in the legislative process, so that the Legislature would be required to accept, if at all, every local bill in the exact terms of its proposal. Not being inclined to hamper legislation unnecessarily, this court has held that the Constitution was not intended to interfere with the right of the Legislature to shape up and work out the details of local legislation. — Ensley v. Cohn, 149 Ala. 316, 42 So. 827; State v. Williams, 143 Ala. 501, 39 So. 276; State ex rel. Hanna v. Tunstall, 145 Ala. 477, 40 So. 135.”

The effect of the decision insofar as this case is concerned can be easily remedied during the current session by advertising the act just like it passed originally, but it will take a long time to undo the legal principle that publication of a “detail” automatically makes that “detail” a matter of “substance.”

The press of time does not permit me to set out in minute detail all the illustrations from our cases which support my view that the change here was not one of “substance,” but I refer the reader to Skinner’s Alabama Constitution Annotated, pp. 518-534, where these cases are annotated.

I am painfully aware that I stand alone in this matter, but I believe the effect of this opinion will unduly affect the public’s right, after having been notified of pending local legislation, to seek amendments to that legislation. I was always under the impression that the whole purpose of a “notice” requirement was to give the public an opportunity to lobby for or against the proposed legislation. Since I think the Court frustrates this principle, I must respectfully dissent.

      . The action also sought to have the trial court construe the plaintiffs entitlement to the proceeds of certain sales and use taxes levied and allocated by the provisions of Act No. 405 of the 1967 Regular Session. As will be shown, it is unnecessary to address that aspect of the decision below.

      . Both the advertised version and the enacted version constitute as members of the Board of Directors the mayor of Birmingham and the Chairman of the governing body of the county.

      . The actual language of the enacted version is “jointly appoint.”


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    William A. LAVETT, as Executor of the Estate of Ellie Mae Carr, deceased v. Claude F. LAVETT. William A. LAVETT v. Claude F. LAVETT.
    80-672, 80-672A.
    Supreme Court of Alabama.
    April 2, 1982.
    Rehearing Denied May 28, 1982.

      Ralph E. Coleman, Birmingham, for appellant.
    Earl R. Peyton, Gardendale, for appellee.
   FAULKNER, Justice.

Elbe Mae Lavett Carr filed a complaint against her son, Claude Lavett, to cancel a deed and recover a ten acre tract of land located in Fultondale, Alabama. Mrs. Carr died a few months later. The executor of her estáte, William A. Lavett, was substituted as plaintiff in the action. Claude Lavett filed suit against the heirs and devi-sees of Mrs. Carr to quiet title to the ten acre tract of land. The two actions were consolidated for trial.

The essence of Mrs. Carr’s complaint is that she conveyed the land based on the fraudulent misrepresentations of her son. Mrs. Carr alleged that Claude Lavett moved into a house on his mother’s property in 1967. Mrs. Carr wished to give her son an acre of land on which to build a new house. Mr. Lavett needed a loan to finance the building of the house, but could not secure a loan without collateral. Claude Lavett allegedly misrepresented to his mother that if she would convey the entire tract to him, he would secure a loan to build the house, and reconvey the property back to Mrs. Carr. Mrs. Carr executed a deed of the tract to her son, stating $1.00 as consideration. On July 11, 1975, Claude Lavett executed a deed transferring one acre of the land to Mary Warren. On the same day, Mary Warren executed a deed recon-veying the land to Claude Lavett. The latter deed was not recorded until January 16, 1979.

On May 16, 1978, Mrs. Carr filed suit against Claude Lavett. In an affidavit, she stated that her intent was to devise the ten acre tract to her three sons, to be divided equally. Mrs. Carr expressed this intent in her will which was executed May 9, 1978.

The parties tried the action before the trial judge, sitting without a jury. The trial court entered a judgment in favor of the appellee, Claude Lavett. The estate of Mrs. Carr appeals.

At trial, the parties introduced conflicting testimony about the reason for the transfer of the disputed tract of land and the terms of the transfer. Claude Lavett testified that his mother transferred the property to him to prevent the property from being sold, so she might have a place to live when she was older. He testified that his brother offered to buy the land from their mother, with the intent of dividing the property and selling it in lots. He testified that Mrs. Carr intended for him to have the property, and said she would deed the property to him at that time if he would promise not to sell it. Claude Lavett’s wife and sister-in-law testified that Mrs. Carr told them that she wanted her son, Claude, to have the ten-acre tract.

William Lavett, the executor of Mrs. Carr’s estate, testified that Mrs. Carr, in conversations with him, told Mr. Lavett that she transferred the property to Claude only temporarily, to secure a loan. William Lavett claimed that his mother said that she agreed to transfer the property as security for a mortgage, and that Claude agreed to use the funds to build a new house on the land. After the house was completed, Claude Lavett was to reconvey the land to his mother and she would then deed one acre and the new house to him. William Lavett’s ex-wife corroborated his testimony. Likewise, the affidavits signed by Mrs. Carr before her death stated substantially the same testimony. Mrs. Carr’s will, executed about the same time as the affidavits, devised the land to her three sons, with the exception of one acre, which was to go to Claude Lavett.

The appellants contend that the admission of certain testimony, which was objected to at trial, is reversible error. The appellant asserts that the following testimony of Mary Warren, Claude Lavett’s sister-in-law, was inadmissible as violating the hearsay rule and the Dead Man’s Statute (Code 1975, § 12-21-163):

MR. COLEMAN: Your Honor, we are going to object. It’s against the Dead Man Statute. She’s testified she is the sister-in-law to a party here in interest, it’s also hearsay, outside of the presence of the two Defendants.
THE COURT: Overruled.
MR. COLEMAN: Except
Q: (by Mr. Peyton) Did you have any conversations with Mrs. Carr — do you remember the question?
A: Yes.
Q: You may answer it if you do.
A: Well, I remember her saying, she told me—
Q: Wait a minute. First, did you have such a conversation?
A: Yes.
Q: Now, what did she say during the course of that conversation?
MR. COLEMAN: Your Honor, same objection. Dead Man Statute. Also, hearsay.
THE COURT: Overruled.
MR. SHIELDS: I don’t know if we need to object, Your Honor. But, we also put our objection on the record.
THE COURT: Objection overruled.
MR. PEYTON: You may answer.
A: Well, she told me that she was real glad that Farley and Dot moved out there on the land, she couldn’t get anyone to move out there. She wanted them, you know, to have the land, would be out there around the home. ’Cause, they did move out there on the land.

Hearsay may be defined as evidence of an out of court statement, being offered to show the truth of the matter asserted. Stephens v. Central of Georgia Railroad Co., 367 So.2d 192 (Ala.1978). The general rule is that hearsay is inadmissible. Id. A well recognized exception to the hearsay rule is a declaration, by a person not available at trial, made against his or her pecuniary or proprietary interest — a declaration against interest. Gamble, McElroy's Alabama Evidence, § 245.01 (3d ed. 1977). See Redmond v. Self, 265 Ala. 155, 90 So.2d 238 (1956). The testimony of Mary Warren falls within this exception to the hearsay rule. She testified that Mrs. Carr stated that she wanted her son, Claude, to have the ten acres. This statement by Mrs. Carr is clearly against her pecuniary interest — acknowledging that she desired her son Claude to have the property that she had transferred to him.

Section 12-21-163, the so-called “dead man’s statute” provides that:

“[N]o person having a pecuniary interest in the result of the action or proceeding shall be allowed to testify against the party to whom his interest is opposed as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the action or proceeding or when such deceased person, at the time of such transaction or statement, ... unless called to testify thereto by the party to whom such interest is opposed or unless the testimony of such deceased person in relation to such transaction or statement is introduced in evidence by the party whose interest is opposed to that of the witness or has been taken and is on file in the case. No person who is an incompetent witness under this section shall make himself competent by transferring his interest to another.”

Several provisions of the dead man’s statute indicate that the testimony of Mary Warren and Claude Lavett is not excluded.

The statute excludes testimony of a person with an adverse interest unless “the testimony of such deceased person in relation to the transaction or statement is introduced in evidence.” In the present case, Mrs. Carr filed affidavits relating her version of the transaction transferring the disputed property. “Testimony” is evidence delivered by a witness either orally at trial or in the form of affidavits or depositions. Black’s Law Dictionary 1646 (4th ed. rev. 1968). Thus, the introduction of Mrs. Carr’s affidavits into evidence via Code 1975, § 35-4-70, renders the dead man’s statute inapplicable.

The testimony of Mary Warren is also admissible because Warren did not have an interest adverse to Mrs. Carr’s estate. The dead man’s statute excludes testimony only if four criteria are met:

(1) The testimony concerns a transaction or statement with a deceased person.
(2) The estate of the deceased will be affected by the outcome of the suit.
(3) The witness has a pecuniary interest in the suit.
(4) The interest of the witness is adverse to the deceased person or his or her estate.

See Bank of the Southeast v. Koslin, 380 So.2d 826 (Ala.1980). DeShazo v. Miller, 346 So.2d 423 (Ala.1977).

Claude Lavett transferred one acre to Warren in 1975, and Warren reconveyed the property the same day, although the reconveyance was not recorded until 1979. Warren’s conversation with Mrs. Carr occurred prior to Warren’s attaining an interest in the property. In order to exclude a witness’s testimony, section 12-21-163 requires that the adverse interest of a witness exist “at the time of such transaction or statement.” Mary Warren’s interest did not exist at the time of the alleged conversation with Mrs. Carr, nor did the interest exist at the time the action was filed or was pending. Thus, the testimony of Mary Warren was admissible.

The appellant also contends that the judgment of the trial court is against the weight of the evidence. The executor’s argument is based on two contentions concerning the burden of proof. First, he claims that Mrs. Carr’s affidavits present prima facie evidence under Code 1975, § 35-4-70, of her right to cancel the deed, and that the appellee failed to present sufficient evidence to overcome the prima facie case. Second, the executor asserts that a parent-child relationship is a confidential relationship and the burden falls on Claude Lavett to show that the transaction was fair.

Section 35-4-70 states that filing affidavits with a deed establishes prima fa-cie evidence of the facts stated in the affidavit. Prima facie evidence may be defined as evidence which suffices for proof of a particular fact until the fact is contradicted by other evidence. Tittle v. State, 252 Ala. 377, 41 So.2d 295 (1949). Prima facie evidence is the quantum of evidence necessary to prevent an action from being dismissed for failure to state a claim. See J. Hazard, Civil Procedure (1978). If no other evidence is submitted to contradict the prima facie evidence, the party presenting the evidence is entitled to judgment. In other words, a prima facie case meets the party’s burden of proceeding, and if no contradictory evidence is permitted, it also meets his or her burden of proof.

The burden of proof does not shift to the other party by presentation of a prima facie case. The burden of proof remains with the plaintiff. If the other party introduces evidence to contradict the prima facie evidence, that party has met its burden of proceeding, and the issue is in the domain of the factfinder. It is only when a party presents a certain high quantum of evidence that establishes no doubt as to his or her right to a verdict, that a directed verdict may be granted in the party’s favor.

The appellant also asserts that the burden is on Mrs. Carr’s son, Claude, to prove that the transaction was fair and equitable. Nevertheless, it is only after the trier of fact finds that one party is the dominant party in a confidential relationship, that the burden shifts to the dominant party to prove the transaction is fair, just and equitable. See Killough v. DeVaney, 374 So.2d 287 (Ala.1979); Jones v. Boothe, 270 Ala. 420, 119 So.2d 203 (1960). There is no evidence in the record showing that Claude Lavett was the dominant party in the transaction in which Mrs. Carr transferred the land to the appellee. The question of who is the dominant party in a relationship is a question of fact. Id. Implicit in the trial court’s judgment for the appellee is the finding that Claude Lavett did not exert undue influence over his mother. The evidence supports its findings.

The finding of a trial court, sitting without a jury, will not be reversed on appeal unless plainly and palpably wrong. Killough v. DeVaney, 374 So.2d 287 (Ala.1979). The judgment of the trial court is due to be affirmed if supported by credible evidence. Id. In the present action, both sides presented opposing testimony. Claude Lavett, .his ex-wife, and his sister-in-law all testified that Mrs. Carr intended Claude to have the disputed property and admitted so on her death bed. The executor presented testimony that Mrs. Carr intended her son Claude to have only one acre of land. The trial court reasonably chose to believe the testimony of the appellee. Since the judgment is supported by credible evidence, it is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.


text:
    TG&Y STORES v. Johnnie E. ATCHLEY and Willie M. Atchley. Willie M. ATCHLEY v. TG&Y STORES.
    80-765, 80-814.
    Supreme Court of Alabama.
    April 2, 1982.
    Rehearing Denied in 80-814 May 28, 1982.

      Michael H. Cleckler of Gaines, Cleckler & Goodrich, Talladega, for appellant/cross-ap-pellee.
    James M. Sizemore, Jr., Sylaeauga, for appellee/cross-appellant.
   FAULKNER, Justice.

These appeals arise from an action for negligence brought by Mrs. Johnnie E. Atchley and her husband, Willie M. Atchley, against TG&Y Stores, a corporation. The complaint alleged that TG&Y’s negligent maintenance of its floors was the proximate cause of Johnnie Atchley’s injuries. Mrs. Atchley alleged that TG&Y negligently left boxes on the floor of its store, causing her to fall. Her daughter testified that she heard her mother fall and when she turned to look, several boxes were lying on top of Mrs. Atchley. As a result of the fall, Mrs. Atchley broke her hip and suffered other injuries. Willie Atchley, her husband, sought damages for the deprivation of her services and for medical expenses incurred for his wife’s treatment.

The action was tried before a jury in Talladega County. At trial, TG&Y introduced evidence of Mrs. Atchley’s various medical conditions, such as arteriosclerosis and diabetes, that might have caused her to fall. TG&Y moved for a directed verdict, which the trial court overruled. The jury returned a verdict in favor of Johnnie E. Atchley, and awarded her damages of $20,-000.00. The jury also returned a verdict in favor of Willie Atchley, but awarded no damages. The trial court overruled TG&Y’s motion for a JNOV or, in the alternative, for a new trial. The court also overruled Willie Atchley’s motion for a new trial and entered a judgment notwithstanding the verdict, against Atchley and in favor of TG&Y. TG&Y appeals; Willie Atch-ley cross-appeals.

TG&Y contends that the trial court erred in denying its motion for a directed verdict and its motion for a new trial. TG&Y argues that Mrs. Atchley failed to show that her injuries were proximately caused by TG&Y’s negligent act or omission.

In order to establish a cause of action for negligence, three elements must be shown. There must be a breach of a legal duty, there must be an injury, and the breach of duty must be the proximate cause of the injury. See Goodson v. Elba Baking Co., 408 So.2d 498 (Ala.1981); Quillen v. Quillen, 388 So.2d 985 (Ala.1980). Clearly, a business, such as TG&Y, owes a duty to its invitees to exercise reasonable care to keep its premises in a reasonably safe condition. See Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 213 So.2d 211 (1968). Furthermore, there is no dispute that Mrs. Atchley suffered an injury.

TG&Y asserts that any verdict in favor of Mrs. Atchley is based on speculation. It is true that a jury may not choose between two equally probable inferences. See Maddox v. Ennis, 274 Ala. 229, 147 So.2d 788 (1962); Southern Railroad Co. v. Dickson, 211 Ala. 481, 100 So. 665 (1924). Nevertheless, the two hypotheses presented at trial are not equally probable. TG&Y introduced evidence that Mrs. Atchley suffered from arteriosclerosis and diabetes, and that as a result, she may have become dizzy and fallen. TG&Y did not introduce anyone who saw Mrs. Atchley fall or who could state that she looked dizzy. On the other hand, Mrs. Atchley’s daughter testified that there were boxes on the floor in front of a display case. She heard Mrs. Atchley fall, and turned to see the boxes lying on top of Mrs. Atchley. Under the circumstances, we cannot say that the jury was not authorized to choose between the two hypotheses.

The question of proximate cause is a question for the jury. Marshall County v. Uptain, 409 So.2d 423 (Ala.1981). It is the function of the jury to resolve disputed issues of fact. Fleming v. Kirkpatrick, 371 So.2d 16 (Ala.1979). The verdict of the jury is presumed to be correct, and will not be set aside unless it is against the preponderance of the evidence. Trans-South-Rent-A-Car, Inc. v. Wein, 378 So.2d 725 (Ala.1979). The presumption of correctness is strengthened when, as in the present case, the trial judge refuses to grant a motion for a new trial. The verdict of the jury in favor of Johnnie Atchley is supported by credible evidence, and will not be disturbed on appeal.

The issue presented by Willie Atchley’s cross-appeal is whether the trial court erred in granting a judgment notwithstanding the verdict, against Mr. Atchley. The jury rendered a verdict in favor of Willie Atch-ley, but failed to award any damages.

An award of damages in favor of an injured spouse does not necessitate that the jury enter a verdict in favor of the other spouse in a companion suit for loss of consortium. Hardin v. Alabama Great Southern Railroad Co., 45 Ala.App. 301, 229 So.2d 803 (1969). See Cook v. Sweatt, 282 Ala. 177, 209 So.2d 891 (1965). The evidence at trial demonstrated that Mrs. Atch-ley incurred medical expenses in conjunction with her injury. In a letter to her doctor, Mrs. Atchley requested that the bill for medical expenses be sent to her. These expenses were necessarily a part of the damages awarded to Mrs. Atchley. There is no evidence that Willie Atchley suffered any damages as a result of his wife’s injuries. The lack of damages is evidenced by the jury’s failure to award damages to Mr. Atchley. The trial court did not err in granting TG&Y’s motion for a judgment notwithstanding the verdict. The judgment of the trial court is affirmed.

AFFIRMED.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: FAULKNER, Justice. FAULKNER, Justice.

text:
    Elvia PATTILLO v. L. H. PATTILLO, et al. Elvia PATTILLO v. Marie P. BAKER, Executrix, etc.
    80-770, 81-6.
    Supreme Court of Alabama.
    April 2, 1982.
    Rehearing Denied June 4, 1982.
    Philip Dale Segrest of Segrest & Pilgrim, Montgomery, for appellant.
    Harry D. Raymon of Raymon, Nathanson & Raymon, Tuskegee, for appellees.
   FAULKNER, Justice.

These appeals arise out of an action for divorce by the husband, L. H. Pattillo, on the grounds of irretrievable breakdown in the marital relationship. The wife, Elvia, contested the divorce and asked that certain transfers be set aside. The trial court granted Mr. Pattillo a divorce and refused to set the transfers aside or to consider the property as part of the marital estate. We reverse and remand.

Mr. Pattillo was first married to Elvia’s sister, Connie. When Connie Pattillo became ill in 1938, Elvia and her children moved in with the Pattillos to take care of the household. Connie died in 1968. Elvia remained in Mr. Pattillo’s household until 1972. L. H. Pattillo married Elvia in 1976. Both parties suffered from poor health. After the marriage, both parties’ health declined markedly. L. H. Pattillo developed cancer, and died while the case was pending on appeal.

L. H. Pattillo acquired a sizeable estate over the years through “frugal living.” The house in which the parties lived had no indoor plumbing or any other modern conveniences. Elvia Pattillo had no knowledge of her husband’s wealth.

Eight days before Mr. Pattillo filed an action for divorce, he cashed in several certificates of deposit worth over $87,000.00, all bearing his name and payable on his death to his daughters. Mr. Pattillo then transferred the funds from the certificates to new certificates of deposit. The new certificates of deposit bore only the names of his daughters. The transfers were not supported by consideration. Mr. Pattillo paid a penalty for early withdrawal on most of the certificates. Mr. Pattillo continued to pay income tax on the certificates of deposit. He filed no gift tax return on the transfers. Mr. Pattillo also transferred more than $20,000.00 cash to his daughters. Mr. Pattillo testified at trial that his only other asset was a savings account which contained four hundred dollars.

Mr. Pattillo also testified that he did not know how much money he transferred to his daughters, even after counsel suggested the correct amount. An employee of the bank in which Mr. Pattillo established the new certificates of deposit testified that Mr. Pattillo returned to the bank after the transfer, seeking to put his name on the account. His daughters assisted him in transferring the property and in filing for a divorce.

On January 27, 1981, L. H. Pattillo filed for a divorce. Elvia Pattillo filed an answer contesting the divorce and seeking to enjoin Mr. Pattillo from transferring any other property. Mrs. Pattillo also brought an action to set aside the transfer of personal property. The trial judge heard the evidence, and rendered a verdict in favor of Mr. Pattillo in both actions.

The trial judge awarded Mrs. Pattillo a life estate in their residence, her personal property, and requested Mr. Pattillo to pay Elvia’s accrued medical expenses and expenses to establish utilities for the house.. The trial court refused to award alimony.

We hold that the trial court erred in failing to consider the more than $100,-000.00 transferred by Mr. Pattillo to his two daughters in determining an equitable property settlement. The majority of jurisdictions in the United States recognized that a transfer of property made to defeat a spouse’s rights in marital property is voidable. See, e.g., Pierson v. Barkley, 253 Ark. 131, 484 S.W.2d 872 (1972); Young v. Bozeman, 229 Ga. 195, 190 S.E.2d 523 (1972); Hellwig v. Hellwig, 100 Ill.App.3d 452, 55 Ill.Dec. 762, 426 N.E.2d 1087 (1981); DuMont v. Godfrey, - Mass. -, 415 N.E.2d 188 (1981); Peoples Oil Co. v. Richardson, 271 N.C. 696, 157 S.E.2d 369 (1967). Whether a transfer is made to defeat a spouse’s property rights is a question of fact. Id.

In the present case, the evidence all leads to the inference that Mr. Pattillo, either alone or under the influence of his daughters, transferred the property in order to defeat Mrs. Pattillo’s rights in the property. The transfers were made eight days prior to filing the divorce action. The transfers were not supported by consideration. Mr. Pattillo accepted an interest penalty of $1000-$3000. Mr. Pattillo continued to pay income tax on the property, and did not file a gift tax return on the transfers. The transfer left Mr. Pattillo with only a minimum amount of assets, hardly enough to live on for one month. Under the total circumstances, Mrs. Pattillo made a prima facie case of transfers to defeat her marital rights. Mr. Pattillo failed to establish that the transactions were fair and equitable, and that they were not made with the intent to defeat Mrs. Pattillo’s rights. Thus, the holding of the trial judge that the transfers should be upheld is plainly and palpably wrong, and against the great weight of the evidence.

The judgments are reversed and the causes are remanded in order for the trial court to consider the transferred assets in determining a proper property settlement.

REVERSED AND REMANDED.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.

ON APPLICATION FOR REHEARING

FAULKNER, Justice.

The application for rehearing asserts that this opinion is contrary to Robertson v. Robertson, 147 Ala. 311, 40 So. 104 (1905). This is not the case. Robertson permits a spouse to transfer personal property freely “except so far as the husband may be liable for her support and maintenance." Furthermore, Robertson involved a disposition that purportedly defeated the wife’s intestate share. In a divorce action, a property settlement is made giving each spouse the value of their interest in the marriage. Each spouse has a right, even a property right in this. But no one has a right, vested, inchoate, or otherwise, in an intestate share until the person is dead. Finally, in McFadden v. McFadden, 134 Ala. 337, 32 So. 719 (1902), this Court recognized the distinctions between the two situations, and set aside a conveyance made to defeat a spouse’s claim for support and maintenance.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

TORBERT, C. J, and ALMON, EMBRY and ADAMS, JJ., concur.

      . Mrs. Pattillo brought a separate action to set aside Mr. Pattillo’s allegedly fraudulent transfer of personal property. The actions were consolidated for trial. The appeal from the fraudulent transfer action came to the Supreme Court and the appeal from the divorce action went to the Court of Civil Appeals. For purposes of judicial economy, the appeals were consolidated and the divorce action was transferred to this Court.


author: FAULKNER, Justice. TORBERT, Chief Justice

text:
    D. R. BROOKS and Irene Brooks v. PEOPLES NATIONAL BANK OF HUNTSVILLE, a National Banking Association.
    80-753.
    Supreme Court of Alabama.
    April 9, 1982.
    Rehearing Denied May 28, 1982.

      Joseph M. Cloud of Cloud & Cloud, Huntsville, for appellants.
    Paul L. Millirons of Stephens, Millirons, Harrison & Walker, Huntsville, for appel-lee.
   FAULKNER, Justice.

On May 18, 1976, D. R. and Irene Brooks executed a promissory note for $50,000.00 to Peoples National Bank of Huntsville. The Brookses gave the Bank a mortgage on a tract of land as collateral for the note. The note was due eighteen months • later. The Brookses, in turn, loaned the money to their son’s corporation, D&B, Inc. D&B, Inc. became insolvent.

On November 4, 1977, the Brookses brought an action against the Peoples Bank for fraud in the inducement of the execution of the note and the mortgage. The Brookses alleged that the Bank’s agents misrepresented that the business operations of D&B, Inc. were improving and prospects for profits were favorable. The Brookses further alleged that the Bank’s agents represented that the loan to D&B, Inc. would be used for future operating expenses. Instead, according to the Brookses, the Bank used the sums for their own benefit by reducing an existing indebtedness of D&B, Inc. to the Bank.

On November 18, 1977, while the action by the Brookses was pending and before the Bank answered the complaint, the Brookses defaulted on the note. The action went to trial and the court entered a judgment against them in October, 1979. Peoples National Bank did not file a counterclaim against the Brookses for default on the promissory note at any stage in the litigation.

On February 6, 1980, Peoples Bank filed an action against D. R. and Irene Brooks for payment of the promissory note. The Brookses asserted as an affirmative defense the failure of the Bank to assert the breach on the note as a compulsory counterclaim in the prior lawsuit. The trial court granted a motion for summary judgment made by the Bank.

The Peoples National Bank began foreclosure proceedings, but were stopped by an injunction granted the appellants. The parties entered into a stipulation agreement for a consent judgment, reserving the trial court’s ruling on the motion for summary judgment and the denial of a permanent injunction for appeal. We affirm.

The issue raised on appeal is whether a claim for default on a note and foreclosure of a mortgage is a compulsory counterclaim in an action for fraud in the inducement of the execution of the note.

A counterclaim is compulsory if it “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” ARCP 13(a). Several tests are used by the courts to determine whether the claim arose from the same transaction or occurrence.

(1) The issues of fact and law raised by the claim and the counterclaim are the same.
(2) Res judicata — would a subsequent suit on the claim be barred absent the compulsory counterclaim rule?
(3) Substantially the same evidence will support or refute the claim and the counterclaim.
(4) There is a logical relationship between the claim and the counterclaim.

See Lyons, Alabama Practice, § 13.6 (1973), 6 Wright & Miller, Federal Practice & Procedure, § 1410 (1971).

While this Court has never specifically adopted a test for determining whether a counterclaim is compulsory, the Committee Comments indicate that it was the intent of the drafters of the rules to adopt the “logical relationship” test. The Committee Comments to Rule 13 state that “[a] counterclaim is compulsory if there is any logical relation of any sort between the original claim and the counterclaim.”

The Court of Civil Appeals adopted the logical relationship test in O’Donohue v. Citizens Bank, 350 So.2d 1049 (Ala.Civ.App.1977). The logical relationship test denominates a counterclaim as compulsory if (1) its trial in the original action would avoid a substantial duplication of effort or (2) the original claim and the counterclaim arose out of the same aggregate core of operative facts. The claims arise from the same core of operative facts if (1) the facts taken as a whole serve as the basis for both claims or (2) the sum total of facts upon which the original claim rests creates legal rights in a party which would otherwise remain dormant. Id., Revere Copper & Brass, Inc. v. Aetna Casualty and Surety Co., 426 F.2d 709 (5th Cir. 1970).

Clearly, in the present action, the claim for fraud in the inducement and the claim for default on the note alleged to have been fraudulently induced are logically related.

This Court, in a similar case, held that in an action on a note, a counterclaim seeking damages for breach of an indemnification agreement executed contemporaneously with the note was a compulsory counterclaim. Redmond v. Harrelson, 355 So.2d 356 (Ala.1978). Furthermore, the majority position in federal courts is that a creditor’s claim for default on a debt is a compulsory counterclaim in an action under the Truth-in-Lending laws. See Plant v. Blazer Financial Services, Inc. of Georgia, 598 F.2d 1357 (5th Cir. 1979); Carter v. Public Finance Corp., 73 F.R.D. 488 (N.D.Ala.1977).

The rationale of these cases is applicable to the present situation. The rule on compulsory counterclaims should receive a “broad realistic interpretation in light of the interest of avoiding a multiplicity of suits.” Id. The action arises out of an allegedly single, continuous loan transaction. The evidence necessary to prove each overlaps, and the facts, taken as a' whole, serve as a basis for both claims. Furthermore, the claim for fraud is an affirmative defense in an action for default. In sum, judicial economy would be served by a single discovery and presentation of the facts.

The Peoples Bank argues that although the complaint alleged fraud in the inducement in the execution of the note, if this Court examines all of the evidence presented at trial in the first action, it will be clear that there were two separate transactions and thus, the counterclaim is not compulsory. Nevertheless, the time for determining whether a counterclaim exists is at the time the counterclaimant must serve an answer. Stahl v. Ohio River Co., 424 F.2d 52 (3d Cir. 1970). The pleader does not waive his right to assert a counterclaim which accrues after serving the pleading. A counterclaim that matures after the pleading or which is omitted for some reason may, with permission of the court, be presented by amendment or supplemental pleading. ARCP 13(e) and (f). It would be inconsistent with the purposes of the rule to permit a party to wait until after discovery and presentation of the evidence to determine whether he or she should assert a compulsory counterclaim.

In general, failure to assert a compulsory counterclaim bars the assertion of that claim in another action. See Redmond v. Harrelson, 355 So.2d 356 (Ala.1978); ARCP 13, Committee Comments. In the present case, however, the Brookses may not assert the compulsory counterclaim rule to bar the Bank’s action. The only evidence presented in this case is in the pleadings and an affidavit presented by the Bank. In the affidavit, it is stated:

In order to keep the issues simple and not to confuse the issues, the parties entered into an agreement and stipulation [in the Brookses’ action for fraud] in effect conforming the mortgage by correcting the description and in consideration of the same, the defendant, Peoples, agreed to hold off on any judicial or non-judicial foreclosure or any suit to collect on the note until the fraud suit arising out of the loan by the Brookses to their son and D&B, Inc. was disposed of.

The affidavit is uncontroverted. A party in a pending suit may be precluded from assuming a position inconsistent with a position taken in another judicial proceeding. United Security Life Insurance Co. v. Birmingham Trust National Bank, 282 Ala. 295, 211 So.2d 139 (1968). It would be contrary to principles of equity and good conscience to permit the Brookses to assume a new position in this action, arguing that the Bank is precluded from asserting a claim for default on the note. See Draughon v. General Finance Credit Corp., 362 So.2d 880 (Ala.1978).

The counterclaim rule is based on the equitable principle of collateral es-toppel. ARCP 13, Committee Comments. The principle bars parties in a subsequent proceeding from asserting any matter which might or ought to have been litigated in a prior proceeding. Id. (citing A. B. C. Truck Lines, Inc. v. Kenemer, 247 Ala. 543, 25 So.2d 511 (1946)). But the principle of collateral estoppel will not bar assertion of a claim which the parties agreed to leave to a subsequent proceeding.

The judgment of the trial court is affirmed.

AFFIRMED.

ALMON, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

I concur in the result of this decision, not because I think the Brookses are estopped to plead that the counterclaim was compulsory, but because I believe the original claim asserted by the Brookses and the subsequent suit by Peoples National Bank of Huntsville (Peoples Bank) did not arise out of the same aggregate core of operative facts. In the original suit, the Brookses, as plaintiffs, sued Peoples Bank for damages for fraud and for conversion of cash, claiming that they were induced to lend the money they had borrowed from the bank to their son and his partner, due to statements by officers of the bank that their son’s business was sound and that the money would be used by that business for operating expenses. There was no question that the money was actually loaned to the Brookses or that the bank gave the stated consideration in exchange for the note and mortgage.

The subsequent suit brought by the bank on the defaulted note was a debt collection suit. It arose while the initial suit was pending when the Brookses defaulted on their loan. It involved proof of a contract, its validity, the record of payments by the Brookses, and their subsequent default. This is in contrast to the initial fraud suit in which the Brookses were required to prove the misrepresentations made to them by Peoples Bank. The two suits do not involve one basic controversy on which separate trials would result in duplication of efforts and a waste of time by the parties.

The initial suit in no way sought to attack the validity of the bank’s loan to the Brookses. Neither did that suit seek to enjoin the foreclosure of the mortgage or to impair collection on the note. Likewise, the suit included no count praying for rescission of the contract as a result of the fraud.

While it is conceded that, but for the loan from Peoples Bank to the Brookses, neither of these suits would have occurred, that fact alone is insufficient to hold that both actions arose out of the same “aggregate core of operative facts.” As stated in O’Donohue v. Citizens Bank, 850 So.2d 1049 (Ala. Civ.App.1977), under the logical relationship test, to give rise to a compulsory counterclaim the facts, taken as a whole, must serve as the basis for both claims or the sum total of facts upon which the initial claim rests must activate legal rights in another party that would otherwise have remained dormant. 250 So.2d at 1054. Here the issues involve, in the first suit, an alleged fraud arising from statements made by bank officers to the Brookses that caused them to use the proceeds of a loan in a manner different from the way they would have used the money had they known the truth, and, in the second suit, a default on the note and efforts to collect. Looking at the facts as a whole, I cannot say that one set of facts serves as the basis for both claims. Nor can I say that the fraud claim necessarily led to the Brookses’ subsequent default. For this reason, I do not believe that the suit to force payment of the note was a compulsory counterclaim, and I agree that the decision of the trial court should be affirmed.


author: ADAMS, Justice. TORBERT, Chief Justice

text:
    William C. MANN v. CHERRY, BEKAERT AND HOLLAND, et al.
    80-666.
    Supreme Court of Alabama.
    April 16, 1982.
    Rehearing Denied May 28, 1982.

      Arthur Green, Jr. of Paden, Green & Pa-den and Ralph L. Armstrong, Bessemer, for appellant.
    Walter J. Sears, III of Bradley, Arant, Rose & White, Birmingham, for appellees.
   ADAMS, Justice.

This appeal comes to us from the Circuit Court for Jefferson County. The dispute between the parties involves the validity of a contract for the purchase and sale of an accounting practice. The contract contained a mutual non-competition covenant. Although the trial court held that the non-competition covenant was void under Code 1975, § 8-1-1, it, nevertheless, upheld the remainder of the contract, thereby requiring William C. Mann (defendant) to pay Cherry, Bekaert & Holland (plaintiff) the agreed purchase price. From that judgment, the defendant appealed.

The dispositive issue on this appeal is whether a contract for the sale of an accounting practice that contains an invalid covenant not to compete, is, nevertheless, valid as to the sale of the practice. We hold that it is, and thereby affirm the judgment of the trial court.

The facts pertinent to this appeal are as follows. Defendant, a certified public accountant, was admitted as a partner into the plaintiff firm, and joined its Birmingham, Alabama, office in 1970. In 1974 the parties agreed to end their partnership. A contract was negotiated and executed that allowed defendant to purchase the physical assets of his former Bessemer, Alabama, office and also the practice of that office. After some negotiation, the parties agreed on the price of $74,527.00, for which the defendant could purchase his former practice. The parties agreed to separate prices for the defendant’s purchase of the office furniture, fixtures, leasehold improvements, accounts receivable, and work in progress. Both parties agreed that $74,527.00, was a reasonable price for the Bessemer practice. The purchase price was offset by the value of defendant’s interest in the partnership. The result, after offsetting, was an agreed upon purchase price of $39,231.72. The parties agreed upon installment payments over a ten-year period beginning on January 20, 1975.

The contract included covenants by which the parties promised not to compete with each other. The parties stipulated that neither has violated those provisions. Defendant signed a note in the amount of $39,-231.72, in accordance with the contract. He made payments on the note until September 15, 1978. At that time the defendant concluded that the non-competition covenants rendered the contract void. He stopped making payments. The plaintiff brought suit and received a judgment for $43,495.63, which represents the remaining balance due on the note and attorney’s fees as provided for under its terms.

Although several analyses would yield the same result, the following analysis is sufficient to reach the correct decision. The parties submitted stipulations of fact in lieu of testimony. Because oral evidence was not taken, the usual presumptions favoring the trial court’s findings do not apply. Instead, this court “sits in judgment on the evidence.” Hacker v. Carlisle, 388 So.2d 947 at 950 (Ala.1980); McCulloch v. Roberts, 292 Ala. 451, 296 So.2d 163 (1974); Redwine v. Jackson, 254 Ala. 564, 49 So.2d 115 (1950). Our review of the stipulations of fact and documents reflecting pre-con-tract negotiations does not reveal anything to lead us to conclude that the final terms of the contract do not reflect the true intentions of the parties. Therefore, our review turns to the pertinent provisions of the contract.

Paragraph four states the following:

4. The Firm hereby sells, transfers, assigns and conveys unto Mann the clients of the Bessemer, Alabama office of the Firm as shown on the list attached hereto as Exhibit A (hereinafter referred to as the “Bessemer practice”) for the sum of SEVENTY-FOUR THOUSAND FIVE HUNDRED TWENTY-SEVEN AND NO/100 DOLLARS ($74,527.00). [Exhibit omitted from opinion.]

Paragraphs five, seven, and eight also note that the purchase price is for the sale of the Bessemer office. Paragraph 18 contains plaintiff’s covenant not to compete with the Bessemer office:

18. The Firm covenants and agrees that it will not provide accounting or tax services for any clients on the attached list without Mann’s approval for a period of 120 months after the effective date of this Agreement. The payment by Mann to the Firm of the SEVENTY-FOUR THOUSAND FIVE HUNDRED TWENTY-SEVEN AND NO/100 DOLLARS ($74,527.00) for the Bessemer practice is taxable income to the Firm and is paid to the Firm in exchange for the Firm’s covenant not to compete with Mann as to the clients listed in Exhibit A.

Paragraph 19 contains a similar non-competition covenant by the defendant:

19. Mann covenants and agrees that he will not provide accounting or tax services to any clients of the Firm’s offices in Alabama for a period of 120 months after the effective date of this Agreement. The payment by the Firm to Mann of the THIRTY-FIVE THOUSAND TWO HUNDRED NINETY-FIVE AND 28/100 DOLLARS ($35,-295.28) is taxable income to Mann and is paid to Mann in exchange for his covenant not to compete as to any clients of the Firm’s Alabama office as well as in full settlement of his partnership interest in the Firm.

The above-quoted paragraphs show that initially the consideration for the contract is stated in paragraph four as being the sale of the client list for the Bessemer office. However, paragraphs 18 and 19 recite that the non-competition covenants also are part of the consideration. Defendant argues that no contradiction or ambiguity exists between these paragraphs, and that the sale of the client list and the non-eom-petition agreements are but one single consideration. He theorizes, therefore, that because Code 1975, § 8-l-l(a), prevents one from being restrained by contract from exercising a lawful profession, the contract is void. Code 1975, § 8-l-l(a), provides:

Every contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind otherwise than is provided by this section is to that extent void.

A certified public accountant is a professional within the meaning of that section. Thompson v. Wiik, Reimer & Sweet, 391 So.2d 1016 (Ala.1980); Gant v. Warr, 286 Ala. 387, 240 So.2d 353 (1970) (construing Code 1940 (Recompiled 1958), Tit. 9, § 22 et seq., the predecessor of Code 1975, § 8-1-1).

We agree with defendant that the above-quoted paragraphs of the contract are neither ambiguous nor contradictory. However, our agreement with the defendant ends there. We cannot accept the proposition that the agreement to buy the client list and the non-competition covenants are one and the same. It certainly is possible that the list could be sold without the agreements not to compete. We are of the opinion that a fair reading of the contract indicates that both are separate elements that entered into the total consideration. Because these are separate elements of consideration, the contract is not totally void under § 8-l-l(a). Only the non-competition covenants are void under that section. Defendant’s apparent arguments to the contrary are not persuasive. The mere inclusion of a non-competition covenant in a contract in violation of § 8-l-l(a) does not necessarily render the entire contract void. The very wording of the statute says that such a contract “is to that extent void.” That language is clear and unambiguous and, therefore, leaves no room for judicial construction. Town of Loxley v. Rosinton Water, Sewer and Fire Protection Authority, Inc., 376 So.2d 705 (Ala.1979). Defendant cites Thompson v. Wiik, Reimer & Sweet, 391 So.2d 1016 (Ala.1980), and Burkett v. Adams, 361 So.2d 1 (Ala.1978), in support of his argument that the entire contract is void due to the inclusion of the non-competition covenants. Those cases do not support defendant’s argument. Thompson v. Wiik, Reimer & Sweet, presented the following fact situation:

After an initial down payment to the sellers of $10,000.00 on October 1, 1971, the Appellees agreed to make monthly payments of twenty per cent of all accounting fees paid to the Appellees by ex-clients of the McCrary and Thompson partnership. These monthly payments were to commence in January of 1972 and were to continue until December 10,1977. The contract specifically provided that “. .. no portion of the total consideration ... is to be treated as a payment for ‘goodwill’ ... and that ... with the exception of the allocation of $8,200.00 [for the physical assets] the remaining portion of all considerations ... shall be regarded as payment for the covenant not to compete ....”

Thompson v. Wiik, Reimer & Sweet at 1017 (footnote omitted). That situation is materially different from the instant case. There, the sole consideration (except for the sale of the physical assets) was the covenant not to compete. Under § 8—1—1, that part of the agreement would fail in its entirety because there was no other lawful basis to the contract. Burkett v. Adams specifically recognizes that an agreement with a covenant not to compete, in violation of § 8-1-1(a), otherwise may be valid. Burkett v. Adams, 361 So.2d 1 n. 1. Defendant’s argument is, therefore, without merit.

Next, defendant contends that his purchase of the client list is useless unless he can prevent plaintiff from competing for these clients. This argument also assumes that there is but one element of consideration for the contract, and, therefore, the contract is void under § 8-l-l(a). In effect, defendant appears to say that the contract is illusory because he is bound to pay for the client list, but the plaintiff is not bound to refrain from competing for the clients on that list. On the surface, defendant’s argument is appealing. It does not, however, withstand closer scrutiny.

It is clear that in actuality the parties are buying and selling the goodwill of the Bessemer office. The parties could buy and sell the goodwill absent a covenant not to compete. We recognize, of course, that subsequent competition by the seller for the subject clients would reduce, and possibly eliminate, the value of the agreement to the buyer. Nevertheless, although, a buyer of goodwill cannot enforce a covenant not to compete, it does not follow that the contract is void for failure of consideration through the operation of § 8-l-l(a).

In the instant case, we are of the opinion that defendant should not be relieved of his obligation to pay the purchase price for the client list. As we have discussed already, the contract is not void in its entirety under § 8-l-l(a). Arguably, it can be said that there has been a failure of consideration in regard to that part of the consideration attributable to the parties’ agreements not to compete. However, under the facts of this case we need not concern ourselves with an analysis of the consequences that might flow from such a failure. We observe that both parties agreed neither is guilty of violating the agreement not to compete. Plaintiff sued the defendant only after he ceased making installment payments on the note executed in accordance with the terms of the contract. As noted above, the defendant did so because he concluded the agreement was void under § 8-l-l(a). Defendant’s action in ceasing payments, thus, apparently was motivated by the theoretical failure of the agreement not to compete. In fact, however, defendant received all that he bargained for because it is undisputed that plaintiff has not attempted to compete for the clients on the list. In Hay v. Fortier, 116 Me. 455 at 458, 102 A. 294 at 295 (1917), the Supreme Judicial Court of Maine stated:

If a contract, although not originally binding for want of mutuality, is nevertheless executed by the party not originally bound, so that the party asserting the invalidity of the contract has actually received the benefit contracted for, the latter will be estopped from refusing performance on his part on the ground that the contract was not originally binding on the other, who has performed. [Citation omitted.]

Similarly, the United States Supreme Court has held:

Where the defendant has actually received the consideration of a written agreement, it is no answer to an action brought against him for a breach of his covenants in the same to say, that the agreement did not bind the plaintiff to perform the promises on his part therein contained, provided it appears that the promises in question have, in fact, been performed in good faith, and without prejudice to the defendant. [Citations omitted.]

Storm v. United States, 94 U.S. 76 at 83, 24 L.Ed. 42 at 45 (1877); cf. McIntyre Lumber & Export Co. v. Jackson Co., 165 Ala. 268, 51 So. 767 (1910) (quoting Storm v. United States). The above-quoted principles apply to this case. Because defendant, in fact, received all that he bargained for, he should not be allowed to use the unenforceability of the non-competition covenants to escape from his obligation under the contract. Had plaintiff actually competed for the subject clients, a different result would be necessary. However, that is not the fact situation before us, so we need not consider it further. Our decision allows us to preter-mit discussion of the other issues raised by the parties.

The judgment of the trial court is affirmed.

AFFIRMED.

FAULKNER, ALMON and EMBRY, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

I concur only in the result of this case. In my view, while it was not argued by either party, the portion of this contract dealing with consideration is severable from the portion dealing with the covenants not to compete and the trial court could have found that under paragraph eighteen of the contract, consideration for the defendant’s covenant not to compete had been paid, as an offset against the amount due under paragraph nineteen. E. C. Ernst, Inc. v. Manhattan Construction Co. of Texas, 387 F.Supp. 1001 (S.D.Ala.1974), aff’d in part, reversed in part on other grounds, 559 F.2d 268 (5th Cir. 1977), cert. denied, 434 U.S. 1067, 98 S.Ct. 1246, 55 L.Ed.2d 769 (1978); Locke v. Kay, 257 Ala. 376, 59 So.2d 70 (1952). This would leave a balance of $39,-231.72, which would be the amount due on the note for the sale of the client list of the Bessemer office.

This holding, in turn, would remedy the possible problems, as raised by the majority opinion, of a failure of consideration as to the parties’ covenants not to compete and a lack of mutuality between the parties. It would also alleviate the necessity of an analysis of an estoppel as to the covenant not to compete where, as here, the parties have not breached and have, at least thus far, received what they bargained for.

      . The contract states it is an integrated agreement. That fact, in addition to its being free of ambiguity, normally would preclude our review of extrinsic evidence. Mass Appraisal Services, Inc. v. Carmichael, 404 So.2d 666 (Ala.1981); Wiginton v. Hill-Soberg Company, 396 So.2d 97 at 98 (Ala.1981); Hibbett Sporting Goods, Inc. v. Beirnbaum, 375 So.2d 431 (Ala.1979); C. F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So.2d 657 (1975). However, where a contract is alleged to be void due to illegality, fraud, or mistake, relevant extrinsic evidence may be considered. Richard Kelley Chevrolet Company v. Seibold, 363 So.2d 989 (Ala.Civ.App.1978); 3 A. Corbin, Contracts § 573 (1960); See Real Coal, Inc. v. Thompson Tractor Company, 379 Ala. 1249 at 1251 (Ala.1980).