The opinion
McCLELLAN, C. J.
— It is clear beyond adverse inference that up to and after the time the sale of the commercial fertilizer to Brown & Oakley was fully completed and consummated by delivery to them, all the terms of the sale having been previously agreed upon and complied with, the fertilizer had not been tagged as required by our statute, and no agreement, expressed or implied, existed between the parties whereby the purchasers were to, attach to the packages tags supplied to them at the time of the sale by the sellers. The transaction is, therefore, not brought within the saving principle declared in the case of Steiner & Sons v. Ray et al., ( 84 Ala. 93 ), but is clearly within the rule of invalidity established by the statute, (Code, § 386), as construed qnd enforced by this court. — Brown & Co. v. Adair & McCarty Bros., 104 Ala. 652 ; Kirby v. Fertilizer & Milling Co., 105 Ala. 529 .
The defendants also pleaded that the plaintiff company did not have a license to sell fertilizers at the time of the alleged sale to them. Issue was taken on this plea. The burden was thus cast on the plaintiff to prove that it had the license required by section 379 of the Code. — E disto Phosphate Co. v. Sandford, 112 Ala. 493 . No evidence was offered on this issue, and the plaintiff must be held to have failed to make out its case.
It follows that on both the points to which we have, adverted the defendants were entitled to the affirmative charge; and that the court erred in charging affirmatively for the plaintiff, and in refusing to so charge for the defendants.
Reversed and remanded.