Lytle & Co. v. Bank of Dothan , 121 Ala. 215 ( 1898 )

SI-IARPE, J.

— The doctrine is of general application that an agent can bind his principal only to the extent of the authority with which he has been expressly or impliedly clothed. The implied powers of a special agent are limited to acts necessary or proper to the accomplishment of the particular matter intrusted to him, while those of a general agent ordinarily extend to the conduct of the business in his charge in the usual and customary manner.—Ala. Gt. So. R. R. Co. v. Hill, 76 Ala. 303; Wheeler & McGuire v. Scoggins & Co., 86 Ala. 402; Louisville Coffin Co. v. Stokes, 78 Ala. 372; Gaines v. McKinley, 1 Ala. 446; Skinner v. Gunn, 9 Port., 305.

Upon this principle a third person may deal with a general agent without inquiring into private restrictions upon his authority.

The written contract between defendants and New-i man recites his employment by them as “general manager of their mercantile business in Dothan.” It contained no express authority for him to borrow money or to sign notes for them. His implied authority as a general agent being a material inquiry, the scope of the agency including the volume of business carried on by Newman for defendants was competent to be shown. The objection to Crawford’s testimony upon that subject was properly overruled.

Among the several ways of showing the existence and scope of such authority circumstances tending to show the exercise of authority on the part of the agent and its recognition on the other part, may also be shown, although they may have no direct connection with the issues tried.—2 Green. Ev., § 65; Tenn. River Trans. Co., v. Kavanaugh, 101 Ala. 1.

The giving of other notes by Newman in the firm name about the time the plaintiff’s notes were given, and while Newman was continuing in the same business, and defendant’s subsequent recognition of their validity about the time Crawford says they promised to pay the plaintiff’s notes, were circumstances competent under the principle stated, though they may have been of slight weight as bearing on the execution or ratification of plaintiff’s notes.

Defendants’ question to the witness Crawford as to why the bank required Farmer to indorse the six hundred dollar note called not for a fact but merely for a reason, and was properly disalloAved.

The introduction of the notes as evidence was objected to upon the ground that it was not shown that Newman had authority to sign defendant’s name to them. There was evidence produced during the trial tending to show defendant Lytle had before the notes were given, authorized plaintiff to let Newman have money when he needed it, and also that afterwards and without objection as to the execution of the notes, he promised to pay them, and the evidence on those points was conflicting. There was also evidence of a general agency in NeAvman from Avldch his power to execute the notes could be inferred. It Avas proper to admit the notes in connection with the other evidence for the jury to determine whether their execution was either authorized or ratified by defendants.

There was no variance betAveen the notes and their description in the complaint such as to justify giving the general affirmative charge for defendants, as is insisted by their brief.

To make a sealed instrument or bond the intention to make it so must be expressed in the body of the writing.

The amendment to the complaint set up no new cause of action but only varied the description of the notes originally sued on. It did not give the defendants the absolute right to file during the trial the additional plea of usury. Its allowance or rejection at that stage of the cause Avas a matter in the discretion of the court. Steele v. Tutwiler, 57 Ala. 113; Reed Lumber Co. v. Lewis, 94 Ala. 626; Donald v. Nelson, 95 Ala. 111.

Notes are among the usual instrumentalities employed to evidence a loan, and if money was loaned by plaintiff pursuant to defendant’s request to let Newman haAre it to carry on their firm business, plaintiff had a right to assume Newman’s authority to use the firm’s name in giving a note therefor. The charge numbered 1, given at .plaintiff’s request, though inaccurately expressed, was not unduly prejudicial to the defendants. It is someAvhat ambiguous in referring to “said note” in the singular, but it may be referred under the. evidence to a note given to the bank and not to the note discounted for Moody & Co. If it tended to mislead in respect to the identity of the note mentioned it could have been explained by another charge if defendant had so requested.

As to the cotton mentioned in the claim of set off the defendants could not treat it as having been sold by them to Drewry and also as remaining their property. It appears that in 1893 Drewry Avas sued in Georgia by defendants for the price of the cotton as evidenced by his due bill given therefor when payment of his check Avas refused, and judgment was obtained against him in that suit. Even if they had not previously elected to treat the transaction as a sale, the institution and prosecution of that suit to judgment, if done with knowledge of the facts attending the giving of the due bill, amounted to a conclusive election on the part of defendants to treat Drewry as purchaser, and to abandon their claim of OAvnership in the cotton.—Butler v. Hildreth, 5 Met. (Mass.) 49; Fireman’s Ins. Co. v. Cochrane, 27 Ala. 228; Field v. Burton, 49 Mich., 53; Terry v. Munger, 121 N. Y. 161; 26 Am. & Eng. Ency. Law, 799, There was therefore no error in giving charge No. 3.

The charges requested by defendant were properly refused. Charge 1 ignores the evidence of Newman’s general agency and the implied powers which as a question of fact may have been found incident thereto and ■which may have included the power to execute the notes.

Their charge No. 2, if given, would have taken the whole question of such authority from the jury.

There is nothing assigned for error to justify a reversal, and the judgment of the circuit court will be affirmed.