Birmingham Mineral Railroad v. Tennessee Coal, Iron Railroad, 127 Ala. 137

127 Ala. 137 | Ala. | 1899

SHARPE, J.-

To show title to the ties alleged to have been converted, the attempt on the part of the plaintiffs was to prove they had been cut from land owned by them jointly by trespassers who disposed of them to certain tie contractors who in turn sold them to the defendant. There was evidence on the part of the defendant tending to show that payment had been made for some of the ties by persons who .cut- them or had them cut, to J. W. Bass, who, claiming to act as the plaintiffs’ agent, agreed on and received the value. To make such payment available as a defense it devolved on the defendant to prove that Bass, who before the trial had died, was authorized to represent the plaintiffs in settling for the ties. So far as appears from the evidence, Bass’ power to act for the plaintiffs rested in parol and therefore its extent so far as it could reasonably be inferred from the evidence was a question of fact for the jury to determine. — S. & N. Ala. R. Co. v. Henlein, 52 Ala. 606.

Acts and declarations of one whose agency is the subject of inquiry, though incompetent when there is no other evidence of agency or of ratification, become competent for consideration in determining both the fact of agency and the' scope of authority originally given, when shown in connection with other evidence of agency. McClung v. Spotswood, 19 Ala. 165. And in such connection circumstances and transactions which have no direct connection with the issues tried may be considered when they are such as illustrate the general nature of the business entrusted to the agent. — Lytle v. Bank, 121 Ala. 215; U. S. Life Ins. Co. v. Lesser, 126 Ala. 568.

Testimony was introduced on the trial tending to show that for about fifteen years plaintiffs had an agent employed to look after the lands, to list them for taxes, and also to look after the timber; that some months before the time when the settlement is said to have occurred, Bass had been put in charge of the lands in the place of the fonder agent, and thereafter -claiming to-act as plaintiffs’ agent he leased out several tracts of the land to various persons, took rent notes therefor — one of which at least he turned over to the plaintiffs — and that he collected for timber cut, had Surveying done for Avhich the plaintiff's paid,- and Avitness stated in substance that Bass Avas held out by the plaintiffs as their agent in that community. In AdeAV of this evidence and the principles to which we have referred, it Avas erroneous for the court to charge the jury as a conclusion of laAV that “payment to Mr. Bass Avould not be a payment in the light of his authority Avitliout notice to the plaintiff that he Avas collecting for them and their ratification of his act.”

The exddence discloses that besides the plaintiffs’ lands there Avere others adjacent from which ties Avere cut for the defendant and that some ties cut from plaintiffs’ lands Avere for use at Champion Mines. Whether any ties cut from the plaintiff’s lands Avere x’-eceived by the defendant and not paid for is not proved Axdth such clearness as to Avaxrant the withdrawal of that question from the jury as was done by charge “A.”

J. D. Allgood’s statement that he saw Bass give a receipt for ties cut by Pink Allgood for the Champion Mines, though not a part of the ties in question, Avasrelevant in connection with the-other evidence of agency to sIioav that Bass AAr-as empowered to collect for the timber in question.

It does not appear that Pink Allgood had any interest in ties Avhich _ xvent to defendant, or that he xvas interested in any Avay in the result of the suit. The persons who under section 1794 of the Code are disqualified to testify about transactions with, or statements by one Avho has died before the tidal, had or done while acting .as agent for tire adverse party, are those only who have a pecuniary interest in the result of the suit.

If by action of their agent either oidginally authorized or afterxvards ratified, the plaintiffs accepted an' agreed price for timber or ties, the transaction amounted to a sale, and effected a -divestiture of plaintiff’s title. But so long as the plaintiffs did nothing to divest themselves of their ownership in the timber and its identity was not lost in the process of accession or otherwise, the plaintiffs had the right to be repossessed of the property and to maintain either detinue or trover therefor though it may have assumed a changed and more valuable form. — Street v. Nelson, 80 Ala. 230; Riddle v. Driver, 12 Ala. 590; Cooper v. Watson, 73 Ala. 252.

Ordinarily the measure of damages in trover when the property has been wholly lost, and when as in this case its market value is not shown to have fluctuated, is the value of the property at the time and place of conversion with interest to the time of trial. — Street v. Nelson, 67 Ala. 504; Linam v. Reeves, 68 Ala. 89; Burks v. Hubbard, 69 Ala. 379. Bespecting property such as timber and mineral which has been a part of land and has become personal property by having been detached therefrom without the owner’s consent, a peculiar principle has been evolved probably to lessen hardships resulting from uncertainties of boundary or title. Under it ore who at the cost of labor or skill, has developed into a more valuable species of property something he has inadvertently severed from another’s land, may, when sued in trover, be allowed an abatement in damages to the extent of the added value; “and the same rule prevails when trover is brought against the unintentional trespasser’s innocent vendee who is treated as standing in the shoes of his innocent vendor.” — White v. Yawkey, 108 Ala. 270; Winchester v. Craig, 33 Mich. 205; Bolles Wooden-ware Co. v. U. S., 106 U. S. 432. This is an exception to the- general rule and does not apply when the severance was willful, nor does it appear that there is sufficient reason or necessity for -extending it in favor of the willful trespasser’s vendee though he be guiltless of intentional wrong. It- is upon the theory and fact of ownership in the property in its improved form that the recovery might have been had in such case of the vendor, and it must be by a questionable invention of doctrine if a right can be accorded to the trespasser, or allowed to his vendee, to restrict the owner’s rights by a transfer of the property between themselves. A consideration opposed to allowing the abatement of the assessed value in such case is forcibly stated in Bolles Wooden-ware Co. v. U. S., 106 U. S. 432, where it was said it would have effect “to give encouragement and reward to the wrong-doer by providing a safe market for what he has stolen and compensation for the labor he has been compelled to do to make his theft effectual and profitable.”

The case of Railroad Co. v. Hutchins, 37 Ohio, 282, holds, and presents in perhaps its strongest light the opposite view; ‘but a dissenting opinion was there rendered by Chief Justice Boynton which in line with the Bolles Wooden-ware Case, supra, denies the asserted right of a vendee to abate when his vendor could not. We accept this view as being in consonance with the weight of authority and with the legal axiom that no man is to be deprived of his property except by his consent or'by operation of laAV. It follows the court did not err in giving charge “B.”

Authority to transact business in relation to lands did not as a matter of laAV constitute Bass plaintiffs’ general agent as is asserted by charge 1 refused to defendant. Nor did it folloAV as a legal conclusion from the fact that Bass Avas placed in charge of the lands, that he could by his acts define the scope of his agency so as to be binding on the plaintiffs without regard to whether those acts were otherwise authorized or were known to and ratified by the plaintiffs, as is assumed by charge 4.

A general agency implies authority in the agent to •act generally in all the business usually conducted by the principal. The evidence on the subject of Bass’ agency did not extend to the plaintiffs’ general business, and would not have warranted the jury in finding that Bass Avas plaintiffs’ agent in their general business affairs. Therefore, charge 3 was abstract, and charge 2 was properly refused. .

Parts of the oral charge excepted to need not be noticed as they will probably not be repeated in the same language on another trial. An assignment of error purports to be based on a ruling respecting Martin’s testimony which does not appear of record. Some others relating to testimony are assigned as error, hut they are not insisted on in appellant’s brief and may not occur again.

For the errors pointed out the judgment must he reversed. The cause will be remanded.