author: SUGG, Presiding Justice,

text:
    DeVILLE FURNITURE CO. v. JESCO, INC., et al.
    No. 53932.
    Supreme Court of Mississippi.
    Dec. 22, 1982.
    Rehearing Denied Jan. 12, 1983.
    Holcomb, Dunbar, Connell, Khayat, Chaf-fin & Willard, Grady F. Tollison, Jr., Dan W. Webb, Oxford, for appellant.
    Marc A. Biggers, Greenwood, Ralph L. Holland, Tupelo, Dan T. Bing, Clarksdale, Dennis W. Voge, F.M. Bush, III, Thomas D. Murry, Tupelo, William Waller, Jr., Jackson, for appellees.
    Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   SUGG, Presiding Justice,

for the Court:

This case was certified by the United States Court of Appeals for the Fifth Circuit as authorized by Mississippi Supreme Court Rule 46. The agreed statement of facts as set forth in the per curiam opinion of the Fifth Circuit follow as Part I, and the questions certified with our response follow as Parts II and III.

PART I

On August 23, 1971, DeVille Furniture Company (DeVille) entered into an agreement with Jesco, Inc. (Jesco) to construct a furniture plant for DeVille in Pontotoc, Mississippi. On January 24, 1972, a second contract was entered into between Jesco and DeVille for construction of an addition to the plant. Jesco employed A.J. Staub, III, (Staub) an architect, to develop specifications for the design of the plant. The design and specifications for the original building and the addition called for the equivalent of a “Barrett’s 20-year type” built up roof over poured roof deck. Jesco assumed responsibility for the design and engineering, as well as being the general contractor for the original building and the addition.

Clark-Burt Roofing Company (Clark-Burt), roofing subcontractor, Cooper-Weir, Inc. (Cooper-Weir) and Abernathy & Clark Sheet Metal & Roofing Works, Inc. (Abernathy & Clark) roof deck subcontractors, and The Celotex Corporation (Celotex) and W.R. Grace & Co. (Grace), material suppliers, were involved in the construction of or furnishing of materials for the roof of the DeVille plant under Jesco’s general contract.

In a separate agreement, Clark-Burt Roofing Company issued a guarantee that the work would be free from defective materials and workmanship for three years from the date of acceptance.

On February 26, 1972, Staub, the architect, gave DeVille written notice of substantial completion of the structure. As early as February, 1972, DeVille became aware of a problem with regard to the leaking of water into the plant through the roof. The problem with leaks in the roof continued, and on February 2, 1974, there was considerable seepage of water through the roof in one area of the plant. DeVille attempted to repair or patch the roof over a period of time using its own maintenance personnel. In February of 1972, Ken W. Davis, an employee of DeVille questioned a Jesco representative on the site about leaks; therefore, DeVille was aware of leaks. Jes-co’s job foreman informed Mr. Davis that there was no need to worry since the water dripping inside was caused by condensation.

DeVille contended that because of its reliance on Jesco’s employee stating that the leaks were caused by condensation, it was unaware of the substantial, concealed deterioration of the roof until 1977-78. It was not until re-roofing was in progress in the summer of 1979 and gravel was removed from the old roof that it became apparent, according to DeVille, that the felt was exposed to weather, allowing water to seep through the roof. It was not known until then, according to DeVille, that double-coated felt was insufficient to provide a twenty-year type roof.

Clark-Burt was never notified on any problem with the roof prior to being served with process after the lawsuit was filed.

On January 4, 1979, six years and ten months after substantial completion and acceptance, DeVille commenced a diversity action by filing a complaint in the United States District Court for the Northern District of Mississippi, alleging that the general contractor, architect, roofing subcontractor and roof deck subcontractors had negligently designed and constructed and used and supplied improper materials in the construction of the roof on DeVille’s plant. The primary complaint was that the roof was deficient in a number of respects, resulting in the leakage of water into the plant and necessitating eventual replacement of the roof. DeVille’s complaint sought more than $300,000 to compensate DeVille for replacing the roof and for damage allegedly sustained by certain property inside the plant. The material suppliers were subsequently joined as third party defendants in this action.

On November 7,1980, based substantially on language in M.T. Reed Construction Company v. Jackson Plating Company, 222 So.2d 838 (Miss.1969), the court in a bench opinion sustained a motion for summary judgment by the defendants, dismissing the action as barred by the six-year statute of limitations, § 15-1-49, Miss.Code Ann. (1972).

DeVille'has prosecuted an appeal to the United States Court of Appeals for the Fifth Circuit, contending, inter alia, that the six-year statute applied by the district court is not applicable to its cause of action, but rather that § 15-1-41 Miss.Code Ann. (Supp.1981), provides the appropriate statute of limitation.

PART II

The first question presented for decision is whether the ten year limitation provision of Mississippi Code Annotated section 15-1-41 (Supp.1981), as amended subsequent to M.T. Reed Construction Company v. Jackson Plating Company, 222 So.2d 838 (Miss.1969) is applicable so that DeVille’s complaint was timely filed against all the defendants.

Before answering the question certified by the Fifth Circuit, the historical background of the abolition of the doctrine of “privity of contract” should be noted. Architects, builders, and suppliers engaged in the design and construction of structures on real property mounted an offense in recent years against expanded liability thrust upon them as an indirect result of the decision in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916). Before that time, courts had denied recovery to a third party against architects, builders, and other persons involved in the design and supervision of the construction of such structures for injuries sustained as a result of any defective or unsafe conditions in such structures. The denial was based on the privity of contract doctrine. However, in Inman v. Binghamton Housing Authority, 3 N.Y.2d 137, 164 N.Y.S.2d 699, 143 N.E.2d 895, 59 A.L.R. 1072 (1957), the “no privity of contract” defense of an architect was found untenable. This gave rise to architects and builders being held liable in some states to parties who were injured as a result of defective or unsafe conditions in structures designed and erected by them. The expanded liability of architects and engineers to third parties was compounded by the fact that statutes of limitation afforded little or no protection because the limitation commenced on the date of the injury notwithstanding the fact that such injury might have occurred many years after the structure was completed and occupied by the owner.

The application of the “discovery” or “know or ought to know” rule as to when an owner’s claim against an architect or builder accrues compounded the potential liability of architects and builders. In this historical setting, architects and builders began to lobby for the adoption of statutes of limitation to ameliorate what they perceived to be an intolerable situation. During the two year period between 1965-1967, thirty states adopted, in one form or another, statutes similar to section 15-1 — 41. See Comment, Recent Statutory Developments Concerning Limitations of Actions Against Architects, Engineers and Builders, 60 Ky.Law Journal 462 (1971).

In the light of this historical background, the Mississippi Legislature enacted Chapter 397 Mississippi General Laws of 1966 to fix a time within which actions could be brought against architects, builders and others arising out of any patent deficiency in the design or construction of a structure on real property. The statute was approved on June 15, 1966 before our decision in State Stove, supra, footnote 2, and appears as section 15-1-41 Mississippi Code Annotated (1972). Chapter 397 provided:

AN ACT to limit the time within which actions may be brought for patent deficiencies in design, planning, inspection, supervision or construction of improvements to immovable property or for property damage, personal injury or wrongful death arising from such deficiency.
Be it enacted by the Legislature of the State of Mississippi:
Section 1. No action to recover damages for injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of any patent deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury except by prior written agreement to the contrary, may be brought against any person, firm or corporation performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than ten (10) years after the written acceptance of such construction by the owner pursuant to the performance or furnishing of such services and construction. This limitation shall not apply to any person, firm or corporation in actual possession and control as owner, tenant or otherwise of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the damages or injury for which it is proposed to bring an action as heretofore controlled by other statute or the laws of Mississippi regarding tort or negligence actions.
Section 2. This act shall take effect and be in force from and after its passage.

After the statute was adopted, we decided M.T. Reed Construction Co. v. Jackson Plating Co., 222 So.2d 838 (Miss.1969). In that case appellee sued appellant and its employee, John S. Winbigler, to recover damages on the ground of negligence of appellants in the selection and installation of a material known as Tectum in the roof deck of appellee’s building. In 1960, the parties entered into a contract for the construction of a building by appellants for the plating operation of appellee. The building was completed and accepted in June, 1961. By late summer of 1966, the Tectum disintegrated because of high humidity and acid fumes incident to the operation of appel-lee’s business and the interior portion of the roof began to fall apart. When appellee filed its suit in December, 1967, the roof deck had deteriorated to the point that the roof required replacement.

The declaration was filed within six years after appellee discovered the roof deck had failed, but more than six years after acceptance of the building. A judgment was entered in favor of appellee for $8,452. On appeal, we reversed and held that the action accrued when the building was accepted by appellee in June, 1961 and that the action was barred by the six year statute of limitations.

Therefore, since there was no allegation of fraudulent concealment and since the Mississippi decisions and statute of limitation do not justify the adoption of the “know or ought to know” rule, we conclude that the trial court erred and that the case must be reversed because the action was barred by the six year statute of limitation, Mississippi Code 1942 Annotated section 722 (1956), which is applicable to this case. The judgment is therefore reversed and judgment is entered here for the appellants. (222 So.2d at 841)

With reference to section 15-1-41, then section 720.5, the Court stated:

Insofar as the determination of the issues of negligence in this case is concerned, it is to be noted that we are not confronted with the issue in futuro of personal injury which has been sustained by management, employees or the public nor are we concerned with the issue of damage to property other than to the roof and its construction, which lacking elements the legislature considered in the enactment of Mississippi Code 1942 Annotated section 720.5 (Supp.1968) and which statute, though all embracing, does not have application here. (222 So.2d at 839, 840)

No reason was given for holding that section 15 — 1—41 had no application, but obviously, the reason for the holding was that the suit involved a latent deficiency rather than a patent deficiency. Section 15-1-41, as originally enacted, applied only to patent deficiencies in the design and construction of improvements to real property and did not apply to latent deficiencies in design and construction.

Following the decision in M.T. Reed, supra, the legislature amended section 15 — 1— 41 in 1972 to read as follows:

No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, and no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity, against any person, firm or corporation performing or’ furnishing the design, planning, supervision of construction or construction of such improvement to real property more than ten (10) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof.
This limitation shall not apply to any person, firm or corporation in actual possession and control as owner, tenant or otherwise of the improvement at the time the defective and unsafe condition of such improvement causes injury.
This limitation shall not apply to actions for wrongful death.
The provisions of this section shall apply to causes of action accruing prior to June 1, 1972, but shall not revive any cause of action barred under existing law as of that date.

The 1972 amendment changed the application of the statute from actions “arising out of any patent deficiency” to actions “arising out of any deficiency” in the design and construction of improvements to real property. The statute, as amended, is plain and unambiguous and applies whether the alleged deficiencies are patent or latent. The amendment supplants our construction of the original statute in M.T. Reed, supra.

Therefore, our answer to the first question is that the ten year limitation of section 15-1-41, as amended in 1972, subsequent to our decision in M.T. Reed, supra, is applicable, and that DeVille’s complaint was timely filed against all of the defendants.

PART III

The second question is:

In the alternative, if § 15-1-41 of Miss. Code, Ann. (Supp.1981) is not applicable under the facts as presented, when did the applicable statute of limitations begin to run?

It is not necessary to answer the second question because we have held that section 15-1-41 Mississippi Code Annotated (Supp. 1982) is applicable under the facts of this case.

It is therefore ordered that this opinion be certified by the Clerk of this Court to the Clerk of the Court of Appeals for the Fifth Circuit as this Court’s answer to the certification request.

PATTERSON, C.J., WALKER, P.J., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

      . 93 A.L.R.3rd 1245 et seq. gives an excellent summary of the historical setting leading up to the adoption of statutes of limitation commonly called “Architect’s Statutes.”

      . “Privity of contract” as to manufactured chattels was abolished in Mississippi July 6, 1966 in State Stove Manufacturing Company v. Hodges, 189 So.2d 113 (Miss.1966). However, in food and beverage cases recovery had been permitted on the theory of “implied warranty” for many years. Coca-Cola Bottling Works v. Lyons, 145 Miss. 876, 111 So. 305 (1927).

      . The Legislature abolished “privity” as a requirement in actions for personal injury, property damage, or economic loss arising out of negligence, strict liability, or breach of warranty, including actions under the Uniform Commercial Code, by Section 11-7-20 Mississippi Code Annotated (1982 Supp.). The effective date of the statute was April 27, 1976.

      . The “discovery” rule was rejected in 1969 for the first time in actions against builders and architects in M.T. Reed Construction Co. v. Jackson Plating Co., supra.

      . In Anderson v. Wagner, 402 So.2d 320 (Miss.1981) we held the statute was constitutional and affirmed the action of the trial court in holding a suit by a third party was barred by the statute.

      . § 15-1-49. Limitations applicable to actions not otherwise specifically provided for. All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after.


source: Caselaw Access Project

license: Public Domain

text:
    Allen D. BICKERTON, et ux. v. Joseph V. SMITH, Sr., et ux.
    No. 53971.
    Supreme Court of Mississippi.
    Dec. 22, 1982.
    Rehearing Denied Jan. 14, 1983.
    Stewart, Burks & Pace, Delos H. Burks, Picayune, for appellants.
    Smith, Smith, Tate, Stuart & Cruthird, E.C. Stuart, Jr., Poplarville, for appellees.
   Appeal from Chancery Court, Pearl River County; Jason H. Floyd, Jr., Special Chancellor.

Before PATTERSON, C.J., and BOWLING and PRATHER, JJ.

Affirmed.


author: JONES, Justice. TORBERT, Chief Justice

text:
    Bill WADSWORTH d/b/a Bill’s Construction Company v. YANCEY BROTHERS COMPANY.
    80-520.
    Supreme Court of Alabama.
    Sept. 3, 1982.
    Rehearing Denied Dec. 22, 1982.
    Roger Killian, Fort Payne, for appellant.
    Charles A. McGee, Fort Payne, for appel-lee.
   JONES, Justice.

Appellant Bill Wadsworth appeals from an adverse judgment entered in an action by Yancey Brothers to recover a deficiency from the sale of a repossessed D-8-H Caterpillar tractor after Wadsworth defaulted on the conditional sales contract for which the tractor was collateral.

I. THE ISSUE

Debtor raises the issue whether, after debtor’s default under a security agreement and creditor’s repossession and sale of the collateral, creditor must allege and prove, as part of its prima facie case, ownership of the contract at the time it repossesses and sells the collateral as a prerequisite to its right of action against debtor for a deficiency balance. A secondary issue (or perhaps the primary issue restated), essential to the disposition of this appeal, is whether failure of creditor to give notice to debtor of the assignment of chattel paper, with recourse, altered debtor’s obligation to the original creditor under the contract, where, after default for nonpayment, the creditor repossesses and sells the collateral prior to the reassignment of the contract to the original assignor.

Wadsworth also claims the trial court erroneously granted Yancey’s motion for directed verdict with respect to his counterclaim for misrepresentation. Because the record reveals that, rather than granting a directed verdict, the trial court in fact designated the counterclaim as a defensive matter in the nature of a set-off, and charged the jury accordingly without objection, we hold that this alleged error is without merit. ARCP 51. Therefore, we limit our consideration on this appeal to the propriety of Yancey’s conduct in the repossession and sale of the tractor.

II. THE FACTS

In May of 1978, Wadsworth and Yancey began negotiations for Wadsworth’s purchase of the D-8-H tractor. After a one-month rental period under a “buy-try” agreement, which applied the rental payments to the tractor’s purchase price, the parties consummated a “conditional sale security agreement” on July 26,1978, listing a purchase price of $97,926.50 (repair costs and finance charges included). Shortly thereafter, the contract was assigned by Yancey to the First National Bank of Chicago, and later reassigned to Yancey by the bank. The reassignment stamped on the back of the chattel paper bears no date. (The date of the reassignment is in dispute. We will return to this point later in the opinion.)

When Wadsworth defaulted on the contract, Yancey informed him of its intent to repossess the tractor and to dispose of it at a private sale in a “commercially reasonable manner.” Wadsworth responded by indicating a willingness to voluntarily turn the tractor over to Yancey with the understanding that Yancey would attempt to sell the tractor at the best price possible and would also notify Wadsworth of any offers made and of any impending sale.

Following repossession of the tractor in October of 1979, Yancey informed counsel for Wadsworth that Yancey had received an offer of $60,000.00 which, if accepted, would leave a deficiency of $16,247.20. Upon Wadsworth’s failure to consent to the sale, this offer was withdrawn. Of the 60 bid advertisements sent out by Yancey, only two were returned as offers. The highest of these was from Yancey and the tractor was sold to Yancey for $55,000.00 in November of 1979.

While the complete agreement is not set out, the record discloses that Yancey and the First National Bank of Chicago had a standing arrangement whereby Yancey made its own collections and took whatever steps it deemed necessary to protect its “with recourse” rights. Yancey’s suit for deficiency was filed in February, 1980, and resulted in a jury verdict, and judgment entered thereon, for $22,000.00.

III. THE DECISION

The issue before us, then, in the context of the adverse ruling below, is the propriety of the trial court’s denying Wads-worth’s motion for directed verdict with respect to Yancey’s repossession and sale of the tractor/collateral.

Ordinarily, the directed verdict test may be stated in evidentiary terms: It is the trial court’s function to view the evidence most favorably to the non-moving party; and if, by any reasonable interpretation, it can support any inference of material fact sought to be proved by the non-moving party, the motion must be denied. This is true because it is the jury, not the court, that must pass upon the evidence, no matter how slight, when the proffered evidence, if believed, is sufficient to allow reasonable persons to fairly and reasonably make a finding favorable to the party having the burden of proving such fact. Herston v. Whitesell, 374 So.2d 267, 270 (Ala.1979).

Here, however, a two-pronged test is applicable: 1) The sufficiency vel non of evidence, giving rise to a reasonable inference supportive of a conclusion favorable to the non-moving party; and 2) assuming the first prong is met, whether such evidence, if believed, establishes each and every requisite element of plaintiff’s claim. See Tew v. Jones, 417 So.2d 146 (Ala.1982).

It is the second prong of this two-pronged test that invokes our analysis of the legal issue stated under art. I: Under the facts of this case, given the “with recourse” assignment by Yancey to the bank without notice to Wadsworth, what are the respective rights of Yancey and Wadsworth upon Wadsworth’s default for non-payment?

The parties place considerable stress upon the timing of the reassignment by the bank to Yancey. Wadsworth, in support of his contention that Yancey’s repossession and sale was unauthorized — and thus that Yan-cey was not the proper party in interest to sue for a deficiency — points to Yancey’s own journal entry in December, 1979 (the date of Yancey’s payment to the bank), as establishing the date of the reassignment. Yancey’s claim that the reassignment occurred in March, 1979, is supported by some evidence that it repurchased all its outstanding “with recourse” chattel paper and assumed its own financing at that time, explaining that the journal entry reflects only the receipt of the sale price of the tractor.

The point of these respective contentions is that if the reassignment occurred in November, as contended by Wadsworth, Yan-cey’s repossession and sale took place at a time when Yancey was not the owner of the contract authorizing such action. It follows, then, according to Wadsworth, that, because the repossession and sale were illegal, Yancey is barred from claiming a deficiency. On the other hand, if the reassignment occurred in March, the repossession and sale having occurred in October and November (all before the December journal entry date), Yancey was in fact the holder of the paper authorizing the repossession, the sale, and the suit for deficiency.

Because both dates precede the date of the suit (February, 1980), and because of our holding with respect to the legal relationship of the parties and their respective rights and obligations incident thereto, the time interval between the two dates, as contended by the parties, is not significant. Furthermore, because of our holding of af-firmance on other grounds, it is unnecessary to address Appellee’s contention that Wads-worth’s express consent to the repossession waived the ownership of the contract issue (or, perhaps more accurately stated, es-topped the Defendant from raising this issue).

Yancey’s brief, in support of the trial court’s ruling, states:

“The transaction [between Yancey and the bank] is one of chattel paper which has its explanation in the Uniform Commercial Code; however, Appellee submits that the Uniform Commercial Code does not alone govern the immediate question before the Court in that the common law and the agreement of Yancey and the financial institution govern this question. [See Code 1975, § 7-1-103.] The Uniform Commercial Code defines the term chattel paper and limits its treatment . .. to the problem of perfection. The Uniform Commercial Code does not govern the rights of the ‘debtor’ of the chattel paper transaction and the ‘secured party’ of a chattel paper transaction. As a matter of fact, the Uniform Commercial Code (and its Alabama counterpart) expressly allows for different possibilities of collection methods including anticipated repossession from the original debtor by either the ‘debtor’ of the chattel paper or the ‘secured party’ of the chattel paper. This is evidenced by the Code of Alabama of 1975, § 7-9-207(1). . ..
“The first ... was the transaction in which [Wadsworth] granted to [Yancey] a security interest in [the tractor]. This transaction was evidenced by a conditional sales contract which is clearly governed by the Uniform Commercial Code. See Code of Alabama of 1975, § 7-9-102(2). The second security transaction was one in which Yancey gave a security interest in certain property to the financial institution in the nature of chattel paper, that is, Yancey had an obligation from Wads-worth to pay a sum of money under the conditional sales contract. This obligation was secured by Wadsworth’s equipment. To obtain financing, Yancey borrowed money from the financial institution and gave as its collateral a security interest in the obligation due from Wads-worth and the security for that obligation [is] referred to under the present law as ‘chattel paper.’ ...
“[The UCC] governs the validity of a sale of chattel paper, but the Code itself understands that the right of collection from the original debtor is a matter to be left to the discretion and agreement of the chattel paper debtor and the chattel secured party. Code of Alabama of 1975, § 7-9-207(1) points out this understanding in the Code.”

While we are persuaded to the ultimate conclusion of Yancey’s position, we find that Yancey’s argument proceeds on a flawed premise. As noted earlier, the record, gleaned from Yancey’s own evidence, is in conflict with respect to the nature of the assignment by it to the bank. This conflict reappears in Yancey’s brief. At one point, counsel for Yancey indicates that the chattel paper was transferred as security for borrowed money, and, at another point, he refers to the transaction as a sale, thus treating the assignment as a separate secured transaction.

The initial flaw in Yancey’s argument is its failure to recognize that both transactions are indeed governed by the UCC. While § 7-1-103 makes clear that the general law of contract has not been abrogated by the UCC, and while those general principles are to be kept in mind,the priority of secured parties is governed entirely by Article 9 of the UCC. See, specifically, § 7-9-102(l)(b) (sale of chattel paper); § 7-9-102(2) (transfer for security of chattel paper); § 7-9-105(l)(a) (definition of account debtor), -(l)(b) (definition of chattel paper), —(l)(d) (definition of debt- or); § 7-9-308 (priority of rights after outright sale of chattel paper); § 7-9-318 (rights of account debtor upon assignment); § 7-9-502 (collection rights of secured party); and § 7-9-504(5) (subrogation rights of chattel paper debtor).

Without detailing the substance of each of these sections, we believe that these sections, with accompanying Comments, clarify the status of the parties and define their rights and obligations under the facts before us.

The problem we find with the “two secured transactions” analysis is that the “second transaction” would have the legal effect of severing the assignor’s interest; and the assignor could no longer act in its own right under the authority of the assigned contract. On the other hand, if the assignment to the bank was a mere pledge of the collateral for a concurrent or pre-ex-isting debt, as opposed to an outright sale of the chattel paper, the pledgor never lost its status as a secured party. § 7-9-504(5).

While the distinction between the transfer for security of chattel paper and the outright sale of chattel paper may be of great materiality under other varying factual situations, it is a distinction without a difference in the instant case. See footnote 1, supra.

If we interpret the record as supporting an outright sale, then, there is ample evidence to support the conclusion that Yancey was acting in an agency relationship on behalf of the bank for the collection from the account debtor, and for its further activity in the repossession and sale of the collateral upon default. In addition to the explicit agreement with respect to collections, the conduct of the parties amply supports the agency authority of Yancey to perform all acts consistent with the holder’s interest as a secured party.

If, on the other hand, we interpret the evidence as amounting to a transfer for security, then, Yancey was acting in its own behalf as a secured party in its repossession and sale of the collateral. That is to say, if Yancey’s assignment was in the nature of a pledge of the chattel paper as security for a debt and not a sale of the chattel paper, Yancey’s status as a secured party remained unaltered; and its rights to collect the payment, repossess upon default, sell the property, and sue for deficiency, if any, are all governed by the applicable sections of the UCC.

Finding no error in the trial court’s refusing to grant Wadsworth’s motion for directed verdict, we affirm the judgment.

AFFIRMED.

FAULKNER and ADAMS, JJ., concur.

TORBERT, C.J., and SHORES, J., concur specially.

TORBERT, Chief Justice

(concurring specially).

I agree that the decision of the trial court should be affirmed, but I would address the issue differently.

The majority correctly identifies the central issue in this case: “[W]hat are the respective rights of Yancey and Wadsworth upon Wadsworth’s default for non-payment?” In undertaking an analysis of these rights it is important to conceptualize the transactions clearly. There are, in fact, two security transactions involved in this case. First, Yancey Brothers, the seller, became a secured party in relation to the equipment sold to Wadsworth, the debt- or/purchaser. Second, upon the transfer of its security agreement to the Bank, the Bank became a secured party with Yancey Brothers being its debtor. While the Bank’s security interest in the chattel paper or in the collateral itself certainly would make it an interested party on repossession or disposition of the collateral, I find no statutory authority for cutting off the seller’s rights on return or repossession of the underlying collateral.

The appellant argues that Yancey no longer owned the chattel paper at the time of the repossession, while the appellee maintains that the transfer to the Bank was not a sale but merely a transfer for security. The Uniform Commercial Code recognizes that it is not always necessary to distinguish these two transactions:

“Commercial financing on the basis of accounts ... and chattel paper is often so conducted that the distinction between a security transfer and a sale is blurred, and a sale of such property is therefore covered by [Article IX] whether intended for security or not.... The buyer then is treated as a secured party, and his interest as a security interest.”

Official Comment 2, Ala.Code § 7-9-102 (1975).

The U.C.C. does not directly address the issue of the rights of the holder of chattel paper in the underlying collateral. However, the Alabama version of the U.C.C. does make explicit provision for those situations in which the seller/assignor repossesses the underlying collateral:

“(5) If a sale of goods results in an account or chattel paper which is transferred by the seller to a secured party, and if the goods are returned to or are repossessed by the seller or the secured party, the following rules determine priorities:
“(b) An unpaid transferee of the chattel paper has a security interest in the goods against the transferor.”

Ala.Code § 7-9-306(5)(b) (1975). Because of the operation of § 7-9-306(5)(b), on return of the goods to the seller, the holder of chattel paper has a security interest in the underlying collateral which is superior to the interest of the seller.

This approach adequately protects the secured parties regardless of whether the transaction is an absolute sale or an assignment for security of the chattel paper. In either case, following the “transfer” of the chattel paper, on repossession or return of the goods to the seller, the bank/secured party has an interest in the collateral superior to that of the seller/secured party. Again, however, the seller’s interest is not completely cut off. The Comments indicate that the nature of the seller’s interest in the collateral will depend upon the agreement between the seller and the bank:

“In cases of repossession by the dealer and also in cases where the chattel was returned to the dealer by the voluntary act of the account debtor, the dealer’s position may be that of a mere custodian; he may be an agent for resale, but without any other obligation to the holder of the chattel paper; he may be obligated to repurchase the chattel, the chattel paper or the account from the secured party or to hold it as collateral for a loan secured by a transfer of the chattel paper or the account.”

Official Comment 4, Ala.Code § 7-9-306 (1975) (emphasis added).

In the case before us, I would hold that Wadsworth has no right or standing to raise an issue as to the nature of the relationship between Yancey Brothers and the Bank. As between these parties it appears that there is no dispute involving the action taken to dispose of the collateral and that the U.C.C. provides adequate protection of their conflicting interests in the event of a dispute. Thus, I would affirm the trial court’s judgment.

SHORES, J., concurs.

      . Whether the original assignment by Yancey to the bank was an outright sale or a transfer for security is not clear in the record. Admittedly, if the bank were a party to these proceedings, claiming, for example, the right of repossession as against Yancey, the true nature of the assignment, of course, would be material in determining the rights and obligations of the parties. As later discussed under part III of the opinion, however, whether the assignment was a sale or a transfer for security is immaterial as between Yancey and Wadsworth.

      . Recognizing that counsel are rarely offended by criticism when they win, we, nonetheless, should be careful to point out that our ‘nit-picking’ process is not intended as criticism. Indeed, we commend both counsel for their diligence and ingenuity in the treatment of this novel issue. Rather, we chose the process of countering Appellees’ various contentions as a convenient vehicle for our analysis and treatment of the issues presented.


author: MADDOX, Justice.

text:
    BURROUGHS CORPORATION, a corporation v. HALL AFFILIATES, INC., a corporation.
    81-120.
    Supreme Court of Alabama.
    Sept. 17, 1982.
    Rehearing Denied Dec. 30, 1982.

      Louis E. Braswell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellant.
    Irvin J. Langford, George W. Finkbohner, Jr., and Stephen C. Olen of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellee.
   MADDOX, Justice.

Four issues are presented to this Court for review by defendant Burroughs Corporation. They are: whether there was an abuse of discretion by the trial court in its decision to deny Burroughs’ motion for new trial because the jurors failed to respond to voir dire questions; whether the trial court committed prejudicial error in sustaining objections to the admissibility of Burroughs’ Exhibit L, a business memorandum of a meeting between Hall Affiliates’ programmer and Hall Affiliates’ president relating to a discussion of programming and alleged problems; whether the trial court committed prejudicial error in sustaining Hall Affiliates’ objections to questions asked by Burroughs of Mr. McCleery, president of the programming firm engaged by Hall Affiliates for the purpose of comparing the Burroughs equipment with competitive equipment of other manufacturers; and, finally, whether there was sufficient evidence to support a verdict of intentional or reckless fraud and to support the punitive damages award.

This suit stems from the purchase of a Burroughs B80 (or B80-40) computer system. The system was purchased from appellant Burroughs by appellee Hall Affiliates, one of thirteen affiliated corporations engaged in the business of importing artificial flowers. The contract for the purchase of the B80 computer and a terminal display (TD) unit was signed on December 8, 1977, with anticipated delivery scheduled for later in 1978. Contracts for a line printer and disc drive were signed on March 28, 1978.

On December 6,1977, two days before the contract was signed for the purchase of the computer and terminal display, Hall Affiliates entered into a programming agreement with the programming firm Winston T. McCleery Consultants, to design customized programming for inventory and accounting purposes.

Hall Affiliates filed suit in August 1978, seeking damages of $500,000 for false and fraudulent representation and breach of warranty and contract. The facts which Hall Affiliates charged Burroughs materially misrepresented related to the capabilities of the B80 computer system. The specific representations alleged were:

1. The B80-40 would perform the accounting functions of Hall Affiliates and the inventory functions at the same time.

2. The B80-40 was capable of multiprogramming (running two programs simultaneously).

3. The B80-40 was capable of operating a TD in a data communications environment.

4. The B80-40 and all of its component parts, including the fixed drive disc, were new.

Burroughs filed a counterclaim seeking approximately $64,000 from Hall Affiliates as unpaid purchase price.

The trial court sustained repeated objections to the admissibility of Burroughs’ Exhibit L, a business memorandum of a meeting between Brian McGuire of the programming firm and Mr. Hall, president of Hall Affiliates. The trial court likewise sustained objections by counsel for Hall Affiliates to questions asked by counsel for Burroughs comparing the Burroughs equipment with competitive equipment of other manufacturers.

The jury verdict awarded Hall Affiliates $500,000 on the fraud cause of action, the full amount sought. The verdict disallowed Burroughs any recovery on its counterclaim.

During the voir dire examination of the jury venire, Burroughs’ attorney submitted two questions which were asked by the trial judge. One was whether the jurors or their family members had ever brought or begun lawsuits. The other was whether the jurors or their family members had ever been sued for non-payment of a bill.

After the verdict was returned, Burroughs learned that five of the 12 jurors, or their spouses, had been involved in prior litigation. At the hearing ore tenus on motion for a new trial, the three affidavits submitted by Burroughs, stating that the voir dire questions were formulated because the information sought by them would be used in exercising jury strikes, were stricken upon motion of Hall Affiliates. Burroughs called no witnesses at this hearing. Hall Affiliates called the five jurors made the subject of Burroughs’ motion for a new trial and the jury foreman. The trial court judge entered detailed and specific findings of fact, including a finding that there was no probable prejudice to Burroughs in his order denying Burroughs’ motion for new trial and judgment notwithstanding the verdict. We affirm conditionally.

Voir Dire Examination

One of the central issues in this case concerns the failure of five jurors to respond to questions submitted by appellant’s counsel and asked by the trial judge during the voir dire examination of the jury venire. Counsel for Burroughs contends that because the prospective jurors failed to answer the questions, appellant was unable to utilize its jury strikes effectively and was, therefore, prejudiced and is entitled to a new trial. Burroughs relies on the ease of Ex parte Ledbetter, 404 So.2d 731 (Ala.1981), wherein this Court reversed both the Court of Criminal Appeals and the trial court and held that the trial court erred in not granting a new trial. In that decision, this Court stated that on the issue of whether the petitioner was prejudiced by a juror’s failure to respond to a question during voir dire, the “test is whether the petitioner might have been, not whether he actually was prejudiced.” Id. at 733.

The earlier case of Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970), did not address the effect of an improper answer or failure to answer questions on voir dire which had they been answered properly would have disclosed a challenge for cause. 286 Ala. at 167, 238 So.2d 330. Rather, Freeman established the standard to which this Court must adhere in reviewing the trial court in those circumstances. Quoting from Freeman:

“We hold that the proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by prospective jurors on voir dire, is whether this has resulted in probable prejudice to the movant. This appears to be the general rule throughout the country....
“There is broad support for the proposition that the trial court’s application of the probable prejudice test is subject to review only for abuse of discretion....
“This rule comports with logic and common sense. The trial judge heard the questions posed on voir dire and answers thereto. He is in the best position to make findings on the question of probable prejudice after the testimony is developed orally, or by affidavit, on new trial motion. His conclusions are then subject to our review for abuse of discretion.
* * * * * *
“We are mindful of the heavy responsibility placed on the trial court to maintain the statutory right which parties have to a full and truthful disclosure by jurors on voir dire. However, we must also be aware of inadvertent concealment and failure to recollect on the part of prospective jurors.
“To re-emphasize, we say that we will review the trial court’s ruling on motion for new trial predicated on jurors’ improper answers to (or failure to answer) questions propounded on voir dire only for abuse of discretion in its determination as to probable prejudice.” [Footnote omitted.]

286 Ala. at 166-167, 238 So.2d 330.

This Court reaffirmed these tenets expressed in Freeman in a recent decision, Estes Health Care Centers, Inc. v. Bannerman, 411 So.2d 109, 111 (Ala.1982).

At the hearing on motion for new trial, the trial judge heard the testimony of the five witnesses who had failed to respond to the questions during the voir dire examination. In denying appellant Burroughs’ motion for judgment notwithstanding the verdict or in the alternative a new trial, he found and concluded:

“The court has carefully considered all the testimony and other evidence offered at the hearing on the Motion for New Trial and the Court has also considered the law submitted by all parties, including the following statements taken from cases submitted by plaintiff:
“ ‘It is impartial jury trial, not complete voir dire questioning, that is the ultimate right involved. Where, in the sound discretion of the trial court an infraction of the latter has no material impact upon the former, no prejudicial error has occurred.’ Anderton v. Montgomery, [607] 609 P.2d [828] 28, 835 (Utah S.C.1980).
“ ‘... The desideratum back of all lawsuits is the achievement of a fair and impartial trial rather than the almost impossible attainment of perfect procedures in a world of honest and well-meaning, but imperfect, human beings.’ Laugherty v. Newcomb, (U.S. C.O. E.C. Tennessee, N.D.1962) 237 F.Supp. 524, 529.
“The Court finds that as to Jurors Ruth Williams, Dorothy Cochran, Geneva Jones and Jennie Green none of these jurors remembered the suits complained of so that there was no probable prejudice to the defendant because any of these jurors did not properly respond to the questions asked. The Court further finds that Jur- or Paul Trauner made an honest inadvertent mistake in his construction of the question asked and that in view of the testimony of the Jury Foreman that the vote was twelve (12) to zero (0) for the Plaintiff under Count One of the Complaint and ten (10) to one (1) for the full amount with one abstention on the first vote and that the Jurors considered only the evidence offered at the trial and the law submitted to them by the Court; the Court finds that there was no probable prejudice to the Defendant by Juror Trauner not responding to voir dire in the manner that Defendant has asserted as error.
“The Court further finds that the evidence which the Court heard during the trial of this cause amply supports the verdict and that it would have been difficult for the Defendant to find any unbiased juror anywhere who would have ruled differently from the present jury.”

Even though the number of jurors failing to respond to voir dire questioning in this case is unusually large, four of the five jurors who failed to respond testified they did not remember the facts inquired about. We have held that when a juror does , not remember particular facts inquired about on voir dire questioning, this does not constitute probable prejudice. Freeman v. Hall, 286 Ala. at 165-167, 238 So.2d 330; Miller v. Samples, 291 Ala. 533, 535, 283 So.2d 424 (1973). The fifth juror misunderstood the voir dire question and we have held that when such is the case, it is not probable prejudice. Freeman v. Hall, 286 Ala. at 165-167, 238 So.2d 330; Estes Health Care Centers, Inc. v. Bannerman, supra, at 112. Another consideration in this case is the temporal remoteness of the facts inquired about, which in this case ranged from incidents that occurred as early as 1970 and as recent as 1976. Freeman v. Hall, 286 Ala. at 176, 238 So.2d 330; Martin v. Mansell, 357 So.2d 964, 967 (Ala.1978). A final consideration in this case is the implicit finding by the trial judge that there was an absence of any improper motive of any one of the five jurors in failing to respond. Bruno Food Stores, Inc. v. Burnett, 288 Ala. 222, 223, 224, 259 So.2d 250 (1972). Therefore, since the trial court has included in the record such express findings on the question of probable prejudice, a practice suggested in Alabama Power Company v. Hussey, 291 Ala. 586, 591, 285 So.2d 92 (1973), and because the trial court judge was in the best possible position to determine whether there was probable prejudice in this particular case, Bruno Food Stores, Inc. v. Burnett, 288 Ala. at 224, 259 So.2d 250, this is sufficient for this Court to conclude that the trial judge, in this instance, did not abuse his discretion in not granting a new trial.

The Alleged Business Memorandum and the Disallowed Questioning of Winston McCleery as a computer expert.

Appellant Burroughs argues that the trial court committed reversible error in sustaining objections to Exhibit L, which it contends was a business memorandum and should have been admitted into evidence. Exhibit L was a memorandum prepared by Brian McGuire of the programming firm engaged by Hall Affiliates to design an appropriate program for the B80 computer. The memorandum detailed the meeting between Hall Affiliates’ president, Mr. Hall, and Brian McGuire, of the programming firm, concerning the programs for the recently purchased Hall Affiliates computer. Winston T. McCleery, president of the programming firm, testified at the trial that his firm had a policy and practice of writing memoranda of meetings and occurrences with clients and this memorandum was prepared and maintained in accordance with that regular business practice.

It is not essential for us to determine whether Exhibit L was, in fact, a business memorandum and, therefore, was improperly excluded from evidence, because the exclusion of Exhibit L, in this instance, constitutes error without injury as set forth in Rule 45 of the Alabama Rules of Appellate Procedure. Rule 45 reads as follows:

“No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges of the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Since the information which Burroughs attempted to admit into evidence as set out in Exhibit L was in essence admitted in the oral examination of Winston McCleery, we find any potential error in the trial court’s disallowance of the memorandum into evidence has not “probably injuriously affected” Burroughs’ rights.

Appellant Burroughs likewise contends that the trial court erred in sustaining Hall Affiliates’ objections to questions asked by appellant of Mr. McCleery which would have elicited a comparison of the Burroughs equipment with competitive equipment of other manufacturers. The trial court properly excluded the testimony of McCleery by which Burroughs sought to compare the B80 computer in question on the basis that neither was the witness shown to be qualified as an expert nor was a proper predicate for such testimony ever laid. Whether or not a particular witness will be allowed to testify as an expert is in the sound discretion of the trial court, whose decision will not be disturbed on appeal except for palpable abuse. Meadows v. Coca-Cola Bottling; Inc., 392 So.2d 825, 827 (Ala.1981); See also Gamble, McElroy’s Alabama Evidence § 127.01(5) (3d ed. 1977). Reviewing the record, we find no such palpable abuse; therefore, the trial court did not err in sustaining appellee’s objections relating to Mr. McCleery’s testimony concerning a comparison of the B80 with comparable computers.

The Fraud Evidence and Punitive Damages Award

The critical elements of an action for fraud under the terms of Code 1975, § 6-5-101, are: (1) a false representation; (2) the false representation must concern a material existing fact; (3) the plaintiff must rely upon the false representation; and (4) the plaintiff must be damaged as a proximate result, regardless of whether the representations were made willfully, recklessly or mistakenly. International Resorts, Inc. v. Lambert, 350 So.2d 391, 394 (Ala.1977); Nobility Homes, Inc. v. Bailen tine, 386 So.2d 727, 730 (Ala.1980). We are satisfied from the record of this case that each of these elements is present and therefore, the trial court correctly submitted the issue of fraud to the jury for its consideration. Although Burroughs argues that the evidence in this case is insufficient to prove intentional or reckless falsity as to the representations made concerning the capabilities of the B80 computer, we reiterate the two standards utilized by this Court in reviewing evidentiary challenges:

“For the sake of clarity, we restate the familiar: Other than objections to admissibility, evidentiary challenges are divided into two separate and distinct categories: (1) sufficiency of the evidence, raised by motions for directed verdict and for J.N. O.V. and measured by the objective ‘scintilla’ rule; and (2) weight and preponder-anee of the evidence, raised by motion for a new trial, and measured by the more subjective ‘palpably wrong, manifestly unjust’ standard.”

Casey v. Jones, 410 So.2d 5, 8 (Ala.1982).

Likewise, where the sufficiency of the evidence to support the verdict is at issue, only the tendencies of the evidence most favorable to the verdict are reviewed; and such inferences as the jury was free to draw are indulged. W.T. Ratliff Co. v. Purvis, 292 Ala. 171, 178, 291 So.2d 289 (1974); First Southern Federal Savings & Loan Association of Mobile v. Nicrosi, 333 So.2d 780, 782 (Ala.1976). In dismissing a motion for judgment notwithstanding the verdict or for a new trial in the alternative as to the issue of fraud, we believe the trial court’s action was proper.

The fact that Hall Affiliates acted on Burroughs’ false representations supports a finding of legal fraud under the terms of Code 1975, § 6-5-101; however, we must determine whether these misrepresentations warrant the imposition of punitive damages.

We have held that an intentional misrepresentation, made either with knowledge of its falsity or reckless disregard as to its truth, is considered in this state as the variety of fraud which will support punitive damages. Ex parte Smith, 412 So.2d 1222, 1223, 1224-1225 (Ala.1982); Ex parte Lewis, 416 So.2d 410 (Ala.1982); see Shiloh Construction Co. v. Mercury Construction Corp., 392 So.2d 809 (Ala.1981). The facts of this case do not evince either the requisite intent or malice to warrant punitive damages. Instead, the facts indicate that the sales agents of appellant Burroughs Corporation improperly assessed the computer needs of Hall Affiliates and recommended a computer model with insufficient capacity to handle the processing requirements of appellee. It was never shown that the B80 computer could not multi-program or operate a remote terminal display; only that the B80 could not do so as the specialized program designed for Hall Affiliates required. Only when efforts to increase the capacity of the existing system proved unsuccessful did Burroughs suggest that a larger, more powerful computer was needed. This fact, and the fact that the disc drive had been previously used in a demonstration without any noticeable wear does not indicate to us that a misrepresentation was intentionally made to the injury of Hall.

The evidence in this case supports an award of compensatory damages only. We, therefore, require a remittitur of $408,-129.13 (Hall Affiliates’ recompensable damage amounts to only $91,870.87; the remainder of the verdict awarded was punitive damages) of the damages as a condition to affirmance of the order denying appellant’s motion for new trial. In the event appellee declines to file the required remit-titur with the clerk of this Court within twenty-one days from the day of this opinion, the judgment will be reversed and the case remanded for a new trial. Otherwise, the judgment as corrected on remittitur will be affirmed.

AFFIRMED CONDITIONALLY.

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

BEATTY, J., did not sit during oral arguments; however, he has listened to the tape recording of the arguments and studied the briefs.

FAULKNER, J., dissents.


author: BEATTY, Justice. BEATTY, Justice.

text:
    Juanita MILLER v. Rosa Bird DAVIS.
    81-609.
    Supreme Court of Alabama.
    Oct. 22, 1982.
    Rehearing Denied Dec. 22, 1982.

      Joseph W. Adams, Birmingham, for appellant.
    John T. Roach, Jr., Birmingham, for ap-pellee.
   BEATTY, Justice.

The plaintiff appeals from denial of her prayer for cancellation of a deed. We affirm.

The plaintiff, Juanita Miller a/k/a Juanita Seltzer, owned a house and lot as tenant in common with her stepsister, Rosa Lee Davis. On October 10, 1972, they conveyed this property to Rosa Bird Davis, who is Rosa Lee’s mother and Juanita’s stepmother. The following allegations appear in plaintiff’s complaint:

“3. That prior to October 10,1972, the defendant, who was in exclusive possession of the premises, represented to the plaintiff that the house was in need of repairs, and requested that the plaintiff sign the necessary papers so that the defendant could borrow such sums as were necessary to make such repairs.
“4. That plaintiff as an accommodation to the defendant and without any consideration executed to the defendant a warranty deed to said property.
“5. That no sums of money were borrowed by the defendant to make any repairs on the premises. That it was not the intention of the parties that the plaintiff would make a gift of her interest in the property to the defendant.
“6. That the plaintiff relied upon the representations made by the defendant that the sole purpose for the execution of the deed of October 10, 1972, was to permit the defendant to repair the premises, and the plaintiff relying on such representation executed said deed.”

The plaintiff brought the present action in 1981, several months after she discovered that she had signed the deed in question.

The case was tried ore tenus without a court reporter. As reflected in the statement of the evidence filed under Alabama Rules of Appellate Procedure 10(d), the parties’ testimony included the following additional points. The plaintiff testified that the defendant’s grandson James spoke to her about signing the papers and accompanied her to the attorney’s office. She did not read what she signed because she did not have her glasses. The defendant testified that she never discussed the matter with plaintiff and did not tell James to have the plaintiff sign the papers. She understood from the beginning that the property was being conveyed to her.

In denying relief to the plaintiff, the trial court noted:

“At the time she executed the Warranty Deed, the Plaintiff could read and was capable of understanding the nature of the instrument she was signing. The Court finds that there was no undue influence or fraud involved in the execution of the Warranty Deed.
“In the opinion of the Court, this case is controlled by the principles set out in the cases of Taylor v. Godsey, 357 So.2d 979 (Ala.1978) and Ingram v. Horn, [294 Ala. 353], 317 So.2d 485 (Ala.1975)....”

The plaintiff then moved for rehearing and filed an amendment to the complaint, consisting of the following addition: “That the deed was executed by the plaintiff by mutual mistake of the parties.” The trial court denied rehearing but allowed the amendment to the complaint, stating that the “mistake of the parties was raised and testimony concerning the question was taken at the oral hearing.”

The trial court evidently proceeded on the assumption that the plaintiffs primary theory was fraud or undue influence. The cases properly cited by the trial court as controlling were both actions to set aside deeds based upon allegations of fraud. These cases held that:

“[W]hen a grantor fails to read a deed (having the ability to read and understand it) and this results in the grantor’s execution of an instrument which conveys realty, which it is subsequently averred that the grantor did not intend to convey, the grantor’s mistake will be attributed to his own negligence and the deed will be upheld so long as his signature was not induced, inter alia, by fraud or misrepresentation. Ingram v. Horn, supra.”

Taylor v. Godsey, 357 So.2d at 981.

The plaintiff does not dispute the trial court’s specific finding of no undue influence or fraud. Rather, the plaintiff in brief asserts that the relief sought was from the outset based upon mutual mistake of the parties.

The applicable statute is Code of Ala. 1975, § 35-4-153, which provides:

“When, through fraud, or a mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a deed, mortgage or other conveyance does not truly express the intention of the parties, it may be revised by a court on the application of the party aggrieved so as to express that intention, insofar as this can be done without prejudice to rights acquired by third persons in good faith and for value.”

Cancellation as well as revision or reformation of a deed is a permissible remedy for mutual mistake under the statute. Garnett v. Taunton, 264 Ala. 293, 87 So.2d 425 (1956). However, the plaintiff has not established statutory prerequisites for relief.

“For an instrument to be reformed, there must have been a meeting of the minds and a mutual mistake in executing it that does not express the common intent, or a mistake on the part of one and conduct on the part of the other so that it would be inequitable to deny a mutual mistake .... ”

Morgan v. Roberts, 387 So.2d 170, 172 (Ala.1980). The plaintiff carries the burden of proof by clear and convincing evidence. Simpson v. First Alabama Bank of Montgomery, 364 So.2d 289 (Ala.1978).

Other than the plaintiff’s assertions, no evidence has been presented that the defendant’s intent was contrary to what the deed reflected or that the defendant acted inequitably. The trial court evidently accepted the defendant’s testimony that she understood the property was conveyed to her. In view of the ore tenus rule and the plaintiff’s burden of proof, we are in no position to question the trial court’s conclusion.

The plaintiff argues that the trial court’s holding that she was negligent under Taylor v. Godsey, supra, makes negligence a defense to a claim for reformation based on mutual mistake. This result, she argues, is contrary to the holding of Clipper v. Gordon, 253 Ala. 428, 432, 44 So.2d 576 (1950), where the court noted that mere negligence “will not defeat reformation ... because . .. mistake nearly always presupposes some negligence.” The plaintiff also cites Lovelace v. McMillan, 265 Ala. 290, 90 So.2d 822 (1956), as a case where reformation was granted to the party who had neglected to read the deed. However, in each of these cases reformation was allowed upon a showing of the common intent of both parties. Here, the plaintiff was denied “reformation” not because she was negligent but because she failed to show that the defendant shared her misapprehension of the transaction.

Let the judgment be affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.

ON APPLICATION FOR REHEARING

BEATTY, Justice.

The appellant complains that the following sentence from the opinion misstates the facts:

“She [the defendant] understood from the beginning that the property was being conveyed to her.”

The basis in the record for this sentence is the following from the Rule 10(d) Statement of Evidence: “She knew she got a deed.” Clearly, this conclusion precludes arguing that the defendant shared the plaintiff’s misconception about the document in question. The plaintiff’s contention that the defendant did not know about the deed at the time it was signed, if true, was simply a factor for the trial court to weigh.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.


author: SHORES, Justice.

text:
    Louis H. MAYO and Doraine Mayo v. TITLE INSURANCE COMPANY, INC., an Alabama Corporation.
    81-689.
    Supreme Court of Alabama.
    Dec. 22, 1982.

      Thomas E. Bryant, Jr., Mobile, for appellants.
    Wade B. Perry, Jr., Mobile, for appellee.
   SHORES, Justice.

This is an appeal from a summary judgment granted in favor of defendant, Title Insurance Company, Inc., on an action brought by the plaintiffs, Louis and Do-raine Mayo, for breach of a policy of title insurance.

Appellants entered into a contract with Trammel Clayton Miller and Juanita Hat-tenstein Miller for the purchase of a parcel of real property located in Mobile County. On April 23, 1974, at the sellers’ request, defendant/appellee issued a commitment to provide a policy of title insurance insuring the sellers’ title in the amount of $1,500, and the title of the appellants in the amount of $5,000. A premium statement was sent on the same day to the sellers, the Millers. That premium was never paid, and no policy was issued. Conveyance of the property was executed on May 1,1974, and, subsequently, recorded on May 7, 1974.

On July 25,1974, the title company issued a commitment to insure for $2,600.00 the lender’s title under a mortgage to be given to the lender by the buyers, the Mayos. The lender was the only named beneficiary under this commitment. Upon receipt of the premium, a policy was issued pursuant to this commitment.

On March 30, 1976, the sellers were adjudicated bankrupts in the United States District Court for the Southern District of Alabama. The property purchased by the Mayos was levied on and seized by a judgment creditor of the sellers who was not discovered by the title company in its title search of the property.

Subsequently, the buyers brought this action in the circuit court of Mobile County, seeking to recover under the policy issued to the lending institution on August 17, 1974. Upon motion by the title company and following submission of affidavits by both parties, the trial court entered a summary judgment dismissing the action.

The Mayos appeal. We affirm.

Rule 56(c) of the Alabama Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Bon Secour Fisheries, Inc. v. Barrentine, 408 So.2d 490 (Ala.1981); Butler v. Michigan Mutual Ins. Co., 402 So.2d 949 (Ala.1981).

Our examination of the record shows that there are no facts, disputed or otherwise, which, taken in the light most favorable to appellants, give rise to any inferences upon which they may base recovery. No policy of insurance was ever issued pursuant to the first commitment. The payment of the premium is of the essence of the risk of insurance. New York Life Ins. Co. v. McJunkin, 227 Ala. 228, 149 So. 663 (1933).

The Mayos do not deny that no premium was paid and that no policy was issued insuring their interest in the property. They merely contend that they should have been billed for the premium payment, and that the non-receipt of a bill raises a genuine issue of fact. In this they are incorrect. The argument states a conclusion, but does not raise a genuine issue of fact. The undisputed facts simply show that no premiums were paid as an express condition precedent to thé issuing of a policy and, thus, no policy was issued.

The Mayos next argue that they were misled into believing that the premiums were being paid out of the proceeds of the sale. Again, the undisputed facts show that the title company did not take part in either the closing transaction or the recording of documents arising from the conveyance. The Mayos do not dispute this. They have again failed to raise a genuine factual issue sufficient to support a theory of recovery.

Finally, appellants cite this Court’s decision in Dixson v. C & G Excavating, Inc., 364 So.2d 1160 (Ala.1978), arguing that a party may not take advantage of a failure of consideration when that party to the contract caused the failure of performance by the other party. Because the title company is not responsible for the nonpayment of premiums, Dixson is inapposite to the facts in the instant case.

Taking all the pleadings and affidavits of both parties into consideration in the light most favorable to the nonmoving party, the Mayos have failed to show any relationship between themselves and appellee upon which any genuine issue of fact might be raised to base recovery. Therefore, the summary judgment entered by the trial court is due to be affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.


author: PER CURIAM.

text:
    John D. REIBER, et al. v. Allen L. TAPLEY, etc.
    81-1077.
    Supreme Court of Alabama.
    Dec. 22, 1982.
    J. William Thomason of Thomason & Russell, Bessemer, for appellants.
    Lane W. Mann of Administrative Office of Courts, Montgomery, for appellee.
   PER CURIAM.

Affirmed on the authority of Code 1975, § 12-17-311, as amended (Section 4 of Act No. 821, Acts of Alabama 1978).

AFFIRMED.

MADDOX, JONES, ALMON, SHORES and BEATTY, JJ., concur.


author: BEATTY, Justice.

text:
    Bryson SPINKS and Frances Grenell Spinks v. ALABAMA POWER COMPANY.
    82-14.
    Supreme Court of Alabama.
    Dec. 22, 1982.
    Donald W. Stewart, Gadsden, for appellants.
    Hugh Reed, Jr., Centre, and Steven F. Casey of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee.
   BEATTY, Justice.

Affirmed on the authority of Brown v. Alabama Power Company, 275 Ala. 467, 156 So.2d 153 (1963); Kutack v. Winn-Dixie Louisiana, Inc., 411 So.2d 137 (Ala.1982); Dorcal, Inc. v. Xerox Corp., 398 So.2d 665 (Ala.1981).

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES and SHORES, JJ., concur.


text:
    Phillip R. NEWTON, Ruby Newton, and First Federal Savings and Loan Association v. William F. BYESS, et al.
    81-547.
    Supreme Court of Alabama.
    Dec. 30, 1982.
    Jesse P. Evans, III of Smyer, White, Taylor, Evans & Sanders, Birmingham, for appellants.
    J. Howard McEniry, Jr. of McEniry, McEniry & McEniry, Bessemer, for appel-lees.
   SHORES, Justice.

This is an appeal from a judgment of the trial court ordering twenty acres of land sold for division. We affirm.

G.W. Byess acquired the twenty acres in 1912. He resided on the land until his death in 1933. He was survived by his third wife. G.W. Byess left nine children from three marriages. All of these children except one, Mabel Byess Hartley, are now dead. Eight of them left lineal descendants.

His third wife, Necie, following his death in 1933, continued to reside in the home on the twenty acres. She moved away for a while and then returned to the property and continued to reside there until her death in 1975.

The lands, assessed for taxes in the widow’s name, were sold for taxes in 1942, and were purchased at a tax sale by H.F. Hart-ley, the husband of Mabel Byess Hartley, a daughter of G.W. Byess by Necie. “A sale for taxes assessed to life tenant does not affect remaindermen.” Bell v. Williams, 256 Ala. 298, 54 So.2d 582 (1951). H.F. Hartley died in 1978, and his widow, Mabel Byess, executed a deed to the twenty acres to Phillip R. Newton and Ruby Newton, who, in turn, executed a mortgage to First Federal Savings and Loan Association of Bessemer. The Newtons and First Federal were made defendants in the suit, seeking sale for division brought by heirs of G.W. Byess, except Mabel Byess Hartley.

All of the parties to this suit agreed that, in the event the court determined that the plaintiffs were entitled to have the property sold, defendants Newton would pay into court $48,500, and the court would divide the sum just as it would had there been a public auction.

There is but one point of difference between the appellants and the appellees. The appellants contend that, in order for Necie, the widow, to become a life tenant of the property, it must be proven that the property was less than 120 acres and valued under $2,000. The appellees concede that no judicial proceeding was held to set aside the lands to the widow as exempt under the homestead law, but assert that, under the law at the time of G.W. By ess’s death, until there was a judicial petition for homestead and a determination of these facts, the widow was entitled to be endowed with the right to the exclusive possession during her lifetime and that the tax sale could have carried no more than her interest, the right to use the property for life. They contend that, since no action was taken to set the property aside to the widow, a sale for taxes did not affect the rights of the re-maindermen and, therefore, the tax sale in this case in 1942 during the lifetime of the widow did not convey the interest of the children.

The judgment of the trial court is affirmed. Two statutes and the cases construing them compel this result. Under § 7925, Ala.Code 1923, in effect at the time G.W. Byess died, his widow was entitled to the right of possession until there was an ascertainment of homestead and, where no ascertainment is made, as was the case here, the right to possession continued until her death in 1975. This statute is now found in § 6-10-67, Ala.Code 1975.

Section 7925, Ala.Code 1923, reads:

“Use, etc., of such property before exemptions set apart; right to sue and defend. — Before grant of administration, and before the exempt property is set apart, the right of the widow and minor child or children, or either, to the use and benefit of such property, shall be the same as if it had been set apart as exempt; and suits respecting the same may be maintained or defended by the widow, or if there is no widow, by the minor child or children, as fully, and to the same extent, as if such property had been set apart as exempt from administration. [Emphasis supplied].”

The widow was in possession of the land at the time of the tax sale as a life tenant. The children of G.W. Dyess were remaindermen. Their interest could not be conveyed by the tax deed. Section 40-10-29, Ala.Code 1975 (Acts 1935, No. 194, p. 256; Code 1940, T. 51, § 276):

“Deeds — Delivered to purchaser. After the expiration of three years from the date of the sale of any real estate for taxes, the judge of probate then in office must execute and deliver to the purchaser, other than the state, or person to whom the certificate of purchase has been assigned, upon the return of the certificate and payment of a fee of $1.00 to the judge of probate, a deed to each lot or parcel of real estate sold to the purchaser and remaining unredeemed, including therein, if desired by the purchaser, any number of parcels, or lots purchased by him at such sale; and such deed shall convey to and vest in the grantee all the right, title, interest and estate of the person whose duty it was to pay the taxes on such real estate and the lien and claim of the state and county thereto, but it shall not convey the right, title or interest of any reversioner or remainderman therein.”

Thus, H.F. Hartley, the purchaser at the tax sale, took only the interest of the life tenant and not the remaindermen. Gunter v. Townsend, 202 Ala. 160, 79 So. 644 (1918). It follows, therefore, that the only interest conveyed to the Newtons by the deed from Mabel Byess Hartley was her interest as a descendant of G.W. Byess. The trial court so held, and its judgment is due to be affirmed.

Appellants finally argue that it has not been proven that the land cannot be equitably divided and, thus, the trial court erred in ordering a sale. This argument has no force. Twenty acres of land is involved with two frame houses on it, and there are thirty-nine different owners of interests, ranging from Vs to Vim. This was sufficient evidence to allow the trial court to conclude that it could not be equitably divided. English v. Brantley, 361 So.2d 549 (1978).

The judgment of the trial court is affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    Ozvelt LUKE v. W.P. SEWELL, et al.
    81-680.
    Supreme Court of Alabama.
    Dec. 30, 1982.
    John F. Cameron, Jr., Montgomery, for appellant.
    Charles Ned Wright, Wedowee, for appel-lees.
    John A. Tinney, ■ Roanoke, for appellee Joe Mote.
   PER CURIAM.

This is an appeal from a decree vesting title to real estate in the appellees. We affirm.

Ozvelt Luke filed suit for declaratory judgment seeking a declaration that he and other heirs of B.L. and Nancy Luke are the owners of eighty acres of land in Randolph County. Defendants Joe Harrell Mote and wife Peggy Mote claim all of the disputed acreage south of a creek, and defendants Terry Lovvorn and wife Sherry Lovvorn claim all of the disputed tract north of the creek.

There is evidence to support the trial court’s finding that the land was sold by W.P. Sewell to B.L. Luke and Nancy Luke in 1918. The Lukes executed a purchase money mortgage to W.P. Sewell at that time. The mortgage had a maturity date of 1922. Sometime in 1939 or 1940, W.P. Sewell, with the aid of the sheriff, ousted the Lukes because of default on the terms of the mortgage. The Lukes paid taxes on the property up until 1940. The trial court found that, following the ouster, W.P. Se-well and his successors have been in open, notorious, hostile, exclusive, peaceable, and continuous adverse possession of the property under claim of right and have paid taxes thereon for more than thirty-five years. Defendants Mote and Lovvorn are successors in title from Sewell.

The appellant contends that the trial court erred in vesting title in the Motes and the Lovvorns. We cannot agree. The record is replete with evidence to support the trial court’s finding of fact. In fact, there is no dispute in the record that the ouster by Sewell took place more than thirty-five years before this action was commenced, and there is evidence to support the court’s finding that Sewell and his successors have claimed the land and have been in actual possession since that time. In fact, the plaintiff, Ozvelt Luke, testified that the tax collector has refused to accept payment of taxes on the land by the Lukes since 1941. He testified that the Sewells had directed the tax collector to refuse payment by the Lukes. The following testimony by Mr. Luke supports the trial court’s holding:

“Q. Now, my question is what did the Luke family do with that property between 1942 and 1950?
“A. Nothing.
“Q. They didn’t even go on it, did they?
“A. Right.
“Q. What did the Luke family do with that property between 1950 and 1960?
“A. We didn’t do nothing with it.
“Q. You didn’t even go on it, did you, between 1950 and 1960?
“A. No.
“Q. What did the Luke family do with the property between 1960 and 1970?
“A. In 1960 and 1970 not anything.
“Q. You didn’t even go on it, did you?
THE COURT: You can shorten it.
Say what have you done since 1942.
“Q. For the last 42-40 years the Luke family has not been on that property, have they?
“A. Scared of a rifle because the reason why we hadn’t been on it is scared of a rifle. That’s why we ain’t been on it.
“Q. My question is the Luke family has not been on this 80 acres of land for the last 40 years, have they?
“A. No.”

The fact of ouster by Sewell was not disputed by Luke. His testimony alone is sufficient to permit the trial court’s conclusion that the Sewells were in possession and that the holding was hostile to the Luke’s interest. More than twenty years have lapsed, that possession ripened into title and constitutes a bar to the Lukes’ claim. The trial court’s reliance on Bozeman v. Bozeman, 82 Ala. 389, 2 So. 732 (Ala.1886), was appropriate:

“The law of Alabama is well settled that the lapse of twenty years will operate as a positive bar to the enforcement of every character of legal right in the courts of this state, unless there has been, within that period of time, a recognition or admission of some material fact on which the right in question may be adjudged to rest, and which therefore, keeps it alive and in force. This doctrine of prescription or repose can not be rebutted.”

The judgment of the trial court is affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


author: BRADLEY, Judge.

text:
    BARRETT MOBILE HOME TRANSPORT, INC., a corporation, and H.L. Williams v. John McGUGIN and Lois McGugin; Harry J. Willis and Brenda Kay Willis.
    Civ. 2416.
    Court of Civil Appeals of Alabama.
    July 15, 1981.
    Rehearing Denied Aug. 19, 1981.
    John W. Cooper, Mentone, for appellants.

      Joseph C. McCorquodale, III, Jackson, for appellees.
   BRADLEY, Judge.

On August 22, 1975 Harry J. and Brenda K. Willis purchased a used Concord mobile home from Mustang Mobile Homes of Alabama and executed a “credit sale contract and security agreement” granting Mustang a security interest in the home. That same day, Mustang assigned all of its rights in the secured collateral or proceeds thereof to Midland Guardian Company. Although the Willises had signed the contract and security agreement for the mobile home, John and Lois McGugin, Mrs. Willis’s parents, made all the payments on the mobile home and lived in it.

In 1976 H.L. Williams was employed by Barrett Mobile Home Transport, a Minnesota corporation, as a mobile home mover. On the morning of August 23, 1976 Williams arrived in Jackson, Alabama to transport the McGugins’ mobile home to Irving-ton, Alabama. After placing the trailer on the carrying frame, Williams inspected the frame’s undercarriage, put air in its tires, and hitched the frame to his truck cab. Williams then attempted to move the mobile home from a small dirt road adjoining the McGugins’ trailer park lot onto a paved two lane highway which abutted the park. To reach the two lane highway, Williams had to drive his truck and carrying frame up the dirt road, over a hump two feet in front of the paved highway, and onto the highway itself. The carrying frame was supported by a series of three axles. When the frame’s third axle attempted to traverse the hump, it rose approximately one foot off the dirt road and then returned to the ground. The frame’s “tongue” simultaneously dug a hole in the asphalt of the highway and the roof, sides, and floor of the McGugins’ mobile home cracked. Williams moved the damaged mobile home back onto the dirt road leading from the trailer park to the paved highway but refused to return it to the McGugins’ lot within the park. Williams proceeded to contact Barrett’s district manager in Birmingham, Alabama, who subsequently appeared in Jackson. Neither Barrett nor Williams offered to repair the damaged trailer at Barrett’s expense or to move it back onto the McGugins’ trailer park lot.

Almost immediately after the accident, Barrett’s district manager asked Mr. Sol Stewart, owner of a mobile home dealership in Jackson, Alabama, to remove the mobile home from the trailer park to his mobile home dealership lot until Barrett decided what it would ultimately do with the home. Stewart complied with this request and the home remained on his storage lot for three or four months thereafter until agents of Mustang Mobile Homes repossessed it in April 1977 for the benefit of Midland Guardian. Stewart charged Barrett ten dollars for moving the home but did not receive any money for storing it.

On September 19, 1976 John and Lois McGugin filed a three count complaint in the Circuit Court of Clarke County against Barrett and Williams. Count one alleged that these defendants had breached their contract to move plaintiffs’ mobile home from Jackson to Mobile, Alabama by failing to move same. Count two charged defendants with negligence in moving the mobile home. Count three stated that defendants had converted the home to their use. Defendants moved the court to change the venue of the action from Clarke County to Jefferson County on the grounds that Barrett was a foreign corporation which did not do business by agent in Clarke County.

After their venue motion was denied, defendants then filed an answer and counterclaim. Plaintiffs denied the counterclaim. The case was tried before a jury on the breach of contract and negligence counts of the complaint. A verdict was rendered for plaintiffs in the amount of $3,536. Defendants moved for a judgment n.o.v. or, in the alternative, for a new trial. These motions were denied. An appeal was perfected and several issues were raised, among them being the question of proper venue. Inasmuch as we consider this issue to be disposi-tive of the appeal, none of the other issues will be considered.

Article 12, § 232 of the Alabama Constitution and § 6-3-7, Code 1975, prohibit the maintenance of a lawsuit in a county against a foreign corporation qualified to do business in this state where the corporation was not doing business by agent in the county at the time the lawsuit was filed. Bolton v. White Motor Co., 239 Ala. 168, 194 So. 510 (1940). Moreover, this rule obtains “regardless of whether it [i.e. the corporation] is sued jointly with someone as to whom venue is good in that county.” Roland Pugh Mining Co. v. Smith, Ala., 388 So.2d 977 (1980). Thus, if Barrett, a Minnesota corporation licensed to do business in Alabama, was not doing business in Clarke County at the time plaintiffs instituted their lawsuit against Barrett and Williams, the circuit court erred in refusing to transfer the case to Jefferson County, where Barrett conceded that it was doing business on September 1, 1976.

Plaintiffs produced no evidence upon the trial of this cause tending to show that Barrett regularly transported mobile homes from or to Clarke County, solicited orders for its business in Clarke County, or had any agents transacting any other business in the county at the time they instituted their action in the county against Barrett and Williams. At most, the record tends to show that Williams and Barrett’s district manager were physically present in the county from August 23 to August 27, 1976, that Mr. Stewart took possession of the McGugins’ mobile home on August 25, 1976 at the manager’s request, and that Stewart maintained the home in storage at Barrett’s request for three to four months subsequent to August 25, 1976. This evidence is wholly insufficient to demonstrate that Barrett was doing business by agent in Clarke County on the date plaintiffs filed suit in this case in its circuit court, i.e. September 1, 1976.

Plaintiffs contend that because Stewart retained possession of their mobile home and maintained it in good condition at Barrett’s behest for three to four months subsequent to August 25, 1976, it necessarily follows that he was Barrett’s agent and that, therefore, Barrett was doing business by agent in Clarke County on September 1, 1976. We cannot agree.

An agency relationship between the parties exists where one party agrees to act on behalf of another and to be subject to his control. Knight Iron & Metal Co. v. Ardis, 29 Ala.App. 600, 199 So. 712 (1940), rev’d on other grounds, 240 Ala. 305,199 So. 716 (1941). A circuit court may not entertain an action against a foreign corporation in its county based upon the actions of its alleged agent in that county unless this agent has express authority to conduct business on the corporation’s behalf. Assured Growth Corp. v. Tomberlin, Ala.Civ.App., 334 So.2d 918 (1976). Although Stewart consented to act on Barrett’s behalf when he moved the plaintiffs’ mobile home onto his mobile home dealership property in Jackson and continued to hold it there at Barrett’s request, he was not subject to Barrett’s control during this period of time. Moreover, Stewart did not receive authority from Barrett to, and was not held out to third persons by Barrett as having authority to, and did not, in fact, drive any of its vehicles, solicit transportation contracts for the corporation, or conduct any other business for the corporation on its behalf. On this state of the record we cannot say that Stewart was acting as Barrett’s agent in Clarke County on September 1, 1976. Consequently, Barrett was not doing business by agent in Clarke County when this action was commenced in its circuit court and that court erred to reversal in refusing to transfer this case to Jefferson County.

The judgment of the circuit court is reversed and the cause remanded for entry of judgment not inconsistent with this opinion. Defendant Barrett’s request for an attorney’s fee of $660.00 is denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

WRIGHT, P.J., and HOLMES, J., concur.