Webb v. Ward , 122 Ala. 355 ( 1898 )

SHARPE, J.

— The pleas filed in this case each set up in bar of the recovery sought, facts specially pleaded to show a want of consideration for the note sued on, in that it was given upon a rescission of a sale of appellant’s half interest in the goods of Moore and Webb made through J. A. Blunt ostensibly to appellee, which transactions appellant elected to treat as invalid upon the ground, alleged to be true, that Blunt was appellant’s agen t in making the sale and was a joint purchaser with appellee, of which fact appellant was ignorant until after the note ivas executed. In plea number one Blunt’s interest as a purchaser appeared only by way of recital in these words: “that after the delivery of said note defendant ascertained that his agent, J. A. Blunt, was a party to the said purchase, and was interested in the debt evidenced, by said note.” This recital falls far short of compliance Avith the rules of pleading AAdiicli require that material facts shall be averred with certainty and which condemn a mere inferential recital of them as insufficient. — 1 Chitty Pleading (16th ed.), 260. Nor does it appear even from the recital in Avhat Avay Blunt was a party'to the purchase or Avas interested in the note. The demurrer to that plea was properly sustained.

The principle invoked by the defense is that which disables a selling agent, without consent of his principal, to combine in himself the character of seller and buyer. By the submission of the cause to the jury under pleas 2 and 3 appellant obtained the full benefit of that principle so that its discussion here is unnecessary. The general affirmative charge was given for the plaintiff presumably upon the conclusion that the pleas Avere not supported by the proof, and in that conclusion A\e fully concur.

The evidence, chiefly relied on to support the averments of the pleas as to Blunt’s agency and his sale of the property appears in the folloAving extracts from appellant’s testimony as sIioavu by the bill of exceptions, upon the construction and effect of which depends the propriety of the charge in question: “About that time I went to J. A. Blunt who resides in Greensboro, also, and whom I had known for a number of years and regarded as my friend, and told him that the firm of Moore and Webb Avas financially embarrassed, and that I desired to sell my undivided one-half interest- in the goods to raise money in order to meet my part of tlie liabilities of the firm. * * * I told Mr. Blunt tliat I had concluded to sell hiy interest., and that I desired him to help me find a purchaser. 1 conferred frequently with Mr. Blunt about the matter, and asked him on various occasions to find a purchaser for me. About the first November, Mr. Blunt told me he thought it was probable that he could find a purchasin', and asked me to tell him what I was willing to take for my interest. I told him I would not take less than 65 cents on the dollar for my half interest, original cost. On Nov. 6th, Mr. Blunt met me at or near Mr. Moslander’s store in Greensboro, and told me that he thought he had a purchaser, for my interest in the stock of goods at 65 cents on the dollar and that he would see me at my room about it. Shortly after this conversation Mr. Blunt came to my room and handed, me a written paper [here follows a copy of a written proposition to sell addressed to appellee and signed by appellant]. This was the first intimation I had that Mr. Ward was the contemplated purchaser. I signed the paper, and Mr. J. A. Blunt signed his name as a witness thereto, and returned it to Mr. Blunt. This paper Avas prepared and ready for my signature before I knew of its existence. Blunt did not then tell me, and has not since told me, that he Avas in anywise interested in said purchase, and Mr. Ward has never so informed me. After 1 had signed the paper as aforestated and handed it to Mr. Blunt, he, Blunt, left and shortly afterwards came back and handed me Ward’s Avritten acceptance of his proposition. * * * In the conversations with Mr. Blunt before the sale took place, I told Blunt I regarded him as my friend and would do anything that he advised.”

On cross-examination the AA'itness stated there Avas no agreement that Blunt should be paid anything for making the sale for him. “Nothing was said about pay in any Avay between us. I stated to several other people besides Mr. Blunt that I Avas anxious to séll my interest in the stock of goods, but never authorized any one except Mr. Blunt to find a purchaser for me. I did’ not learn that Blunt Avas a co-purchaser with Ward of my interest until after the note had been executed.”

This testimony shows nothing more in effect than voluntary and gratuitous, though self-interested, service rendered by Blunt at appellant’s request in finding him a purchaser and bringing the parties together upon the terms of the trade, which was'finally effected directly between themselves by a Avritten proposition on one side and a Avritten acceptance thereof on the other side. The fact that the: purchase was for the joint benefit of appellee and Blunt does not affect the question of agency. Appellant noAAdiere testifies that he gave authority to Blunt to sell, but only that after consulting him as a friend he requested him to find a purchaser. Such request imposed no obligation upon either party,and it is plain that it conferred uo authority to sell. Agency is founded upon contract either express or implied, and is a legal relation Avhereby the agent is employed or authorized to represent the principal in the business to be transacted.— Mechem on Agency, § 1; 2 Kent’s Com., p. 784; Wharton on Agency, § 1. The request in question created no contractual relation betAveen appellant and Blunt — imposed no obligation'upon either party — Avas not even a request to sell and conferred no authority to do so, nor was the part taken by Blunt in conveying mutual propositions between appellant and appellee the exercise of a poAver to sell.

Finding no error in the record, the judgment of the circuit court is affirmed.