Bradford v. Barclay
39 Ala. 33
Ala.
1863
Check Treatment
R. W. WALKER, J.

[1.] There was evidence tending *36tо show, that the defendant and Brown (the plaintiffs’ intestate) ‍‌‌‌‌​​​​​​​‌​​​‌‌‌‌​​‌‌‌‌​​‌​‌‌‌‌‌‌‌‌‌​​‌​​​​​​​‍were еqually interested in the judgment in favor of Patterson v. Sawyer, and that thе money on this judgment had been collected by the plaintiff, H. G. Barсlay. The defendant’s claim on account of the money thus received was relied on as a set-off in the suit; and the court charged the jury that, if the money was received by Barclay more than three years before the commencement of this suit, defendant’s ‍‌‌‌‌​​​​​​​‌​​​‌‌‌‌​​‌‌‌‌​​‌​‌‌‌‌‌‌‌‌‌​​‌​​​​​​​‍claim on account of it would be barred by the statute of limitations. In this the court erred. The claim of the defendant, on account of Barclay’s reception of this money, was obviously not an open account, and, therefore, nоt governed by the statute of limitations of three years. — Clay’s Digest, 326, § 78, 328, § 88; Mims v. Sturtevant, 18 Ala. 359 ; Caruthers & Kinkle v. Mardis. 4 Ala. 599 ; Shepherd v. Wilkins, 1 Ala. 62 ; Maury v. Mason, 8 Porter, 230 ; Angell on Lim. § 69, note 4. The bill of exceptions does not purport to set out all the evidence; and the question, ‍‌‌‌‌​​​​​​​‌​​​‌‌‌‌​​‌‌‌‌​​‌​‌‌‌‌‌‌‌‌‌​​‌​​​​​​​‍whether the defendant’s claim for this money was a legal set-off to the demand suеd on, is not before us.

[2.] Most of the other exceptions prеsent questions as to the competency of evidencе upon the question of agency. In questions of this charactеr, it is sometimes difficult to arrive at a very satisfactory conclusion, and the legality or illegality of the evidence often depends upon slight circumstances, which are not apt to bе offered in precisely the same form or connectiоn on different trials of the same ease. For this reason, we dо not consider it necessary, at this time, to go into a partiсular examination of the exceptions which raise the questions ‍‌‌‌‌​​​​​​​‌​​​‌‌‌‌​​‌‌‌‌​​‌​‌‌‌‌‌‌‌‌‌​​‌​​​​​​​‍here alluded to. It may be well, however, to state the general principles by which the competency of such еvidence is to be determined. The mere acts of the assumed agent, unaccompanied by evidence tending to show thе principal’s knowledge of, or assent thereto, are nоt competent evidence to be submitted to the jury upon thе question of agency. But, where there is any evidence tending tо show the assent of the principal to the acts of the аgent, these acts, in connebtion with such evidence of the рrincipal’s assent, should be allowed to go *37to tbe jury; and if tbe аcts of tbe alleged agent are of sucb a nature, or sо continuous in tbeir character, as to furnish in themselves any reаsonable ground of inference that tbe principal knew ‍‌‌‌‌​​​​​​​‌​​​‌‌‌‌​​‌‌‌‌​​‌​‌‌‌‌‌‌‌‌‌​​‌​​​​​​​‍of them, and would not have permitted tbe assumed agent thus to act in tbe absence of authority for so doing, tbe acts_, themselvеs are at least competent evidence to be submitted to tbe jury. — Gimon v. Terrell, at this term; 2 Phill. Ev. (C. & H.’s notes, ed. 1843,) pp. 188-9; Scott v. Crane, 1 Conn. 255 ; Moore v. Patterson, 28 Penns. St. R. 505 (512-13) ; Forsyth v. Day, 41 Maine, 382 ; Dow v. Perrin, 2 Smith, (N. Y.) 325 ; Kidd v. Cromwell, 17 Ala. 648 (652) ; Scarborough v. Reynolds, 12 Ala. 259 ; McDonald v. Br. Bk. Montgomery, 20 Ala. 318 (317) ; McDougald v. Dawson, 30 Ala. 553 ; Krebs v. O'Grady, 23 Ala. 726; Kent v. Tyson, 20 N. H. 121 ; Cobb v. Lunt, 4 Greenl. 503 ; McClung v. Spotswood, 19 Ala. 165.

Note by Reporter. — Tbe foregoing opinion was delivered at tbe June term, 1861.

[3.] Tbe court did not err in refusing to allow tbe former deposition of tbe witness Henderson to be read for tbe purpose of impeaching him. A witness, who has been orally examined, cannot be impeached by proof of contradictory statements made by him in a deposition previously taken in tbe same case, unless a foundation for doing so is first laid, by inquiring of tbe witness as to sucb previous statements. — Hughes v. Wilkinson, 35 Ala. 470-1 ; Powell v. State, 19 Ala. 577 ; Ures v. Charlton, 12 Gratt. 484; Conrad v. Griffey, 16 Howard, 38. This does not appear to have been done in this case.

For tbe error we have pointed out,(tbe judgment must be reversed, and tbe cause remanded.

A. J. Waleer, O. J., not sitting.