Parker v. Bond , 121 Ala. 529 ( 1898 )

McCLELLAN, O. J.

— This action is prosecuted by Parker against Bond on a promissory note executed by the latter to the former. Defendant’s first plea sets up that one Edwards, who was acting and holding himself out as the agent and representative of the Washington Life Ins. Co., persuaded and induced defendant to sign the note, that in consideration thereof he was to receive a policy of insurance on his life in the sum of $5,000 from said company, and that he did receive a policy of insurance from said company some weeks after he signed the note; that Edwards in order to induce him to sign said note stated to him that after the policy of insurance was received by defendant if he was not perfectly satisfied with its provisions, he, the said Edwards, would take back the policy and return the note to the defendant, and that defendant when he received the policy and examined its contents was dissatisfied with it and offered to return it to said Edwards, and at the same time requested and demanded that the said note be returned to him, and 'that Edwards refused to return the note to him. This plea goes to the consideration of the note sued on. It shows that it was given in consideration of a policy of life insurance to be issued to the maker which should be satisfactory to him, that no such policy was issued to or received by him and that he seasonably offered to surrender and return an unsatisfactory policy which was sent him and thereupon demanded the surrender of his note. It may be that the stipulation relied upon in the plea that the policy should be entirely' satisfactory to defendant is an unusual one, but it is none the less valid on that account. It is analogous to a sale subject to inspection and approval of the article sold, and when, as in this instance, the approval is unhampered no grounds of dissatisfaction or disapproval need be stated"; the question is left to the discretion of the buyer, if not indeed to Ms caprice, and it is tbe fact of dissatisfaction, not tlie grounds of it, which authorizes a repudiation of the transaction. The action being prosecuted by the payee of the note, the defense of a want of consideration is, of course, available to the defendant whether Edwards was in point of fact the payee’s agent or not in making the contract and taking the note; but whether so or not originally he is to be taken as such agent since the plaintiff has adopted his acts by accepting and suing on the note which resulted from them. It is equally immaterial that Edwards has no interest in the note sued on, and never had; nor is it of any consequence that the note itself contains a stipulation in effect waiving all defenses against it and attempting to put the payee on the same footing as purchasers for value without notice. If such stipulation were otherwise unobjectionable, it falls in this case because it is itself, like the main undertaking, unsupported by a consideration. The demurrer to this plea, raising these and other objections thereto, should have been overruled. The error in sustaining the demurrer is, however, without prejudice to apellant, — :said erroneous ruling having been in his favor.

Plea No. 2 filed by the defendant sets up in substance the same, defense interposed by plea 1, varying the language somewhat — as, for instance, by averring that the policy to be issued to defendant should “suit him in every particular, that he should have the right to accept or refuse the same,” and that in the event of his refusing it, the policy should be cancelled and the note should be returned to defendant,” etc., etc., and averring that Edwards Avas the agent of the plaintiff. One objection taken by the demurrer to this plea which was not made to plea 1, Avas that it failed to show that defendant seasonably made known his dissatisfaction Avith the policy and his election to refuse it, and seasonably offered to return it. We think the plea does show this; but' even if it does not, the error in overruling the demurrer was not of prejudice to plaintiff since the evidence without conflict shoAvs that if defendant acted in the matter at all he did so within a reasonable time, and thus supports the plea as it was construed by the loAver court to aver due. dili-genre m electing not to accept the policy and offering to return it. This with what we have said in respect of the first plea will serve to indicate the grounds of onr opinion that there was no error — or ' at least none of which appellant can complain — in overruling the demurrer to the second plea.

The 5th plea avers that the note sued on was procured by plaintiff’s fraudulent representations in that plaintiff through his agent Edwards applied to defendant to have the Washington Life Ins. Co. write a policy on defendant’s life, and agreed that if defendant would execute the contract sued on a policy would be issued, to him containing a guaranty that said company would lend defendant ninety per cent, of the face value of the policy after three annual premiums had been paid, the loan to bear four per cent interest, and that if the policy did not contain this agreement defendant could return the same to Edwards, and the note sued on should in that event be surrendered to defendant; that defendant upon the receipt of the policy by mail examined it promptly and promptly offered it to said Edwards, and that he declined to cancel the same and declined to surrender the note. The policy itself is incorporated in this plea and it does not contain the stipulation above set out as to the loan to the defendant. The plea is not open to any óf the objections taken by the demurrer. It is. like pleas 1 and 2, a plea going to the consideration of the note sued on rather than of misrepresentation and fraud. It avers that the note was given in consideration of an undertaking on the part of Parker to have issued to the maker a policy containing a certain material and important; stipulation, that the undertaking to this effect induced the execution of the note, that the policy issued to him did not contain this stipulation and hence that the consideration for the note failed; and that the defendant seasonably repudiated the transaction, offered to return the policy as by the contract he had a right to do, and demanded the surrender, pf his note. These facts constituted a complete defense to the action, and the circuit court properly so held.

Plea 1 alleged that Edwards held himself .out as the agent of the Washington Life Ins. Oo. Under this averment it ivas obviously competent to prove the declarations of EdAvards that he was such agent not for the purpose of showing the fact of agency but for the purpose of shoAving that EdAvards held himself out as agent.

The defendant Avas properly alloAved to testify that at the time of and just before the signing' of the note “Ed-Avards said he Avould give me a policy to mature in twenty years, and after I had made three annual payments I could borroAV ninety per cent of the face value at four per cent” and agreed that this stipulation should be in the policy. This testimony Avent directly to support the fifth plea, and going, as it did, to show a Avant or failure of consideration, its admissibility was not precluded by the contemporaneous or subsequent execution of the note. And the same is true in respect of the further testimony of this witness as to his right to return the policy if it should prove to be unsatisfactory to him.

While agency may not he proved by the declarations of the agent, it may unquestionably be established by the testimony of the agent; and such testimony may involve only a statement of the fact of agency without going into the details as to how the relation -was brought about or as to the particular facts upon which it rests. EdAvards testified that he Avas the agent of Parker in taking the note sued on. That he did take the note payable to Parker is in nowise controverted; and that Parker adopted his act in this regard is demonstrated by the institution of this suit. On this state of case the fact of EdAvards’ agency for Parker is removed from the field of controversy.

There was no question of ratification by the defendant in the case. There Avas a question whether he accepted the policy AAdiich was issued to and received by him as the policy for which he had contracted. The letter of March 26, 1897, written by him to EdAvards may have been some evidence of such acceptance, but it was not evidence of any ratification. The charge requested by plaintiff to the effect or upon the assumption that this letter should be considered by the jury on the question of ratification was, therefore, to say the least inapt and confusing — abstract indeed in a sense — and properly refused. Moreover, conceding the letter was some evidence of ratification of the note, it was not conclusive as is assumed in charges 2 and 4 refused to plaintiff. The charge given by the court of its own motion as to this letter as far as it went correctly submitted its evidential capacity to the jury. If plaintiff was entitled to have the jury consider it as evidence upon the further question whether the defendant accepted the policy sent to him as a consideration for his note, a special instruction to that effect should have been requested.

The remaining instructions given by the court ex mero motu and at defendant’s request are in consonance with the views we have expressed.

Guided by the rule laid down in Cobb v. Malone & Collins, 92 Ala. 630, we find no error in the overruling of plaintiff’s motion for a new trial.

Affirmed.