Robertson Banking Co. v. Brasfield , 202 Ala. 167 ( 1918 )

I concur in the opinions filed by the Chief Justice and by Justice MAYFIELD. I think the record shows that Kirven was not acting as the agent of Brasfield in making a loan, but solely and exclusively for himself in the perpetration of an independent fraud. It is true that knowledge acquired by an agent prior to, or outside of, his service as agent, if present in his mind while acting as agent, is prima facie (but not conclusively) presumed to have been communicated by him to his principal. This, however, is a mere rule of evidence, and is wholly distinct from the rule which conclusively charges the principal with constructive knowledge of all pertinent information acquired by the agent while actually acting as agent. This distinction was discussed at length by the writer in the case of Hall Co. v. Haley Co., 174 Ala. 190, 56 So. 726, L.R.A. 1918B, 924.

If it be conceded, for the argument, that Kirven was Brasfield's agent in such sense as was discussed in that case, I think the facts here shown would forbid the application of the rule of constructive knowledge as applied in that case, and in First National Bank v. Allen, 100 Ala. 476, 14 So. 335, 27 L.R.A. 426, 46 Am. St. Rep. 80. On the contrary it would be merely a question of the actual knowledge of Brasfield of the nonexistence of Johnson, which, though prima facie presumed (Hall Co. v. Haley Co., supra), is fully rebutted by the testimony of Brasfield, aided by the consideration that Kirven could not have informed him of Johnson's nonexistence without denouncing his own fraud and defeating his entire design.

I do not think the cases above referred to are opposed to the conclusions stated in the opinion of the Chief Justice. With respect to the Allen Case, it is necessary to observe that the knowledge imputed to Allen was not the fraudulent conduct of his agent, Tomlin, in forging the checks, though he was then in Allen's service, but only the knowledge of those forgeries necessarily acquired by Tomlin while afterwards discharging for Allen the latter's duty of inspecting his canceled checks — a distinction which, in my opinion, excludes its application to the instant case.