71 Ala. 271 | Ala. | 1882
The present case is an action of trespass, brought by a mortgagor against the mortgagee and another, for taking possession of certain personal property, under a power of sale contained in the mortgage. The seizure was made in January, 1875, after the law-day of the mortgage, by order of the defendant, John F. Burns, acting as the agent of his father, James IT. Burns, who is shown not to have originally authorized the act, but who is sought to be made liable upon the ground of a subsequent ratification.
1. At the time of this transaction, the principle of law prevailing in this State was, that a mortgagee of chattels could sustain an action of detinue for them after default, if any portion of the mortgage debt remained unpaid. ITis right to recover could only be defeated by showing payment or discharge of the entire debt.-Morrison v. Judge, 14 Ala. 182; Bell v. Pharr, 7 Ala. 807. It is immaterial that this principle has been since modified by legislation, so as to authorize the defendant to put in issue, in such eases, the amount due on the mortgage debt.-Session Acts, 1880-81, p. 39. If the mortgagee would be entitled to sue in detinue under such circumstances, the right must be based upon a general or special property in the goods sought to be recovered, coupled with the right of immediate possession.-Gafford v. Stearns, 51 Ala. 434; 1 Chitty’s Plead. 121.
If, therefore, at the time the mortgagor’s goods were seized, there remained any part of the mortgage debt unpaid, the mortgagee’s right to take possession of the whole of the mortgaged property under the power of sale granted in the instrument, would not be affected by reason of the partial payments previously made, unless such be' the fair inference from the language of the mortgage. In the present cáse, we discover no words or language qualifying or limiting the general power to take possession of the entire property, after default.
2. It was not competent for the plaintiff, in this action of trespass, to assail the mortgage debt for usury. Usurious contracts in this State are not absolutely void, but merely voidable
The mortgage executed by plaintiff to James H. Burns, one of the defendants, was introduced in the present case as evidence of defendant’s title to the property seized under it. Neither the mortgagee, nor his agents, could be made trespassers by an effort on plaintiff’s part to collaterally assail the mortgage debt as usurious, thus imparting retrospective operation to a.n election as to- usury thus irregularly made. All the evidence, which was admitted in the trial below looking to this end, was irrelevant, and should have been excluded.
3. It is contended that the mortgage debt has been entirely extinguished by the proceeds of certain cotton shipped by the mortgagor, Campbell, to the mortgagee, Burns, and sold by the latter, or under his authority, as a cotton factor and commission merchant. If this be true, and the fact be shown satisfactorily by the evidence introduced on the trial, then such payment would discharge the mortgage, and entirely extinguish the lien intended to be secured on the property conveyed by it. Herman on Chat. Mort. § 168; Dryer v. Lewis, 57 Ala. 551. In such event the mortgagee would be chargeable as a trespasser, if he sought, either through himself or his agent, to seize the mortgaged property, for he could not show title under a satisfied mortgage, or justify taking possession under a power conferred by it.
The mortgage in question was executed by the appellee on March 3, 1874, and was given to secure a note for one hundred and twenty-five dollars, payable to James H. Burns, October-1, 1874; also such advcmees as Burns, the mortgagee, might make to Campbell, the plaintiff, during the year, to enable him to cultivate certain lands, including commissions of .two and a half per cent, for selling certain cotton agreed to be shipped by plaintiff to Burns. It conveyed all the mortgagor’s crop of' cotton and corn, to be grown during the current year in Dallas.
4. For all articles of merchandise, advanced by Burns to Campbell, he was entitled to charge such prices as may have been agreed on; or, in the absence of any agreement, a fair and reasonable market valuation, as estimated at the time and place of sale. What the prices of the goods were, as paid by Burns at wholesale purchase, at another time or place, was entirely immaterial. Fair and honest dealing-is all that the law exacts from the mortgagee, under such circumstances, in his transactions with the mortgagor. While it is his duty, on the one hand, not to oppress, he is, on the other, under no obligations to confer benefactions.
5. If a debtor, to whom an account is rendered, either admits its correctness, or retains it and makes no objection within a reasonable time, he will be bound by it as an account stated, his silence, in the latter case, being presumptively construed into an acquiescence in its justness.-Langdon v. Roane's Adm'r, 6 Ala. 518. So if one item only is objected to, this is an admission of the correctness of the other items to which no objection is interposed.-2 Greenl. Ev. § 126; Chisman v. Count, 2 M. & Gr. 307. If, therefore, Burns rendered his account to Campbell, as the evidence tends to show, and the latter, several days afterwards, objected only to the item charged for rails, this would be an implied admission of the correctness of the rest of the account.
6. It was no valid objection to the correctness of the account that one of the items advanced to plaintiff by the mortgagee, James IT. Burns, was a horse belonging to John F. Burns, provided the latter consented to such disposition of his property. And even though the transaction was the execution of a mere agency, no one but the principal could interfere to prevent the enforcement of the contract in the agent’s name, whether .by suit or otherwise.-Bishop on Contracts, § 356; 1 Brick. Dig. p. 67, §§ 225 et seg. And the agreement between the parties, that
7. Nor was it a matter of concern to Campbell, that the mortgagee, who was a commission merchant, employed the services of a broker to sell the cotton consigned to him, and procured such sale to be made at a commission less than that agreed to be paid by Gampbell. The legal maxim, that an agent can not delegate his authority to a sub-agent, has no application to such a case. It can be invoked only by the principal when sought to be charged by the act of the sub-agent. Harralson & Co. v. Stein, 50 Ala. 347; Ewell on Agency (Evan’s Ed.), p. 53, note. The plaintiff does not here seek to disavow the act of the sub-agent, the broker, in selling his cotton; nor is there any effort made to impugn his skill- or faithfulness. The contention relates only to the compensation for services charged by the agent. The maxim in question, furthermore, does not prohibit the employment of subordinates, but rather of substitutes.
8. The circumstances under which a mortgagee may take possession of personal property conveyed by the mortgage, under authority of a power of sale conferred by the instrument, are fully discussed in the case of Street v. Sinclair, ante, p. 110. It was there held that, after default, he could execute the power by entering upon the premises of the mortgagor and taking peaceable possession of the mortgaged property, without consent of the mortgagor, provided he thereby committed no breach of the peace. , We have no disposition to depart from the doctrine of that case.-Herman on Chat. Mort. p. 209, § 96; McNeal v. Emerson, 15 Gray, 384; Satterwhite v. Kennedy, 3 Strob. 457; London Co. v. Drake, 6 C. B. (N. S.) 798. The evidence here shows that the mortgaged goods wrere on the platform of the railroad depot ready to be shipped to Monte-vallo in another county. They are shown to have been in the custody of one Sharpe wdio had acted as cartman in hauling them to the depot by request of plaintiff’s wife. It is not shown that he either consented or objected to the seizure under the mortgage. Under these circumstances, if any portion of the mortgage debt remained unpaid, an agent of the mortgagee could lawfully take possession of the mortgaged property without. becoming a trespasser, if he in no manner subjected himself to a violation of the criminal law. Jones on Chat. Mortg. § 434; Nichols v. Webster, 1 Chand. (Wis.) 203; McNeal v. Emerson, 15 Gray, 384; Herman on Chat. Mortg. § 96, supra.
10. Supposing that there was no confusion of goods within the above rule, it is still insisted by appellant’s counsel that the after-acgwi/i-ed property of the mortgagor, Campbell, passed to the mortgagee under the express terms of the mortgage. The granting clause conveys “ all my [the mortgagor’s] effects of every description.” The habendiom clause authorizes the mortgagee to take possession of “ the above described property, or any other effects of mine [the mortgagor’s] wherever found.” The principle has been often decided in this State that property having a potential existence can be the subject of a valid grant, sale, or mortgage. An owner or tenant of land, for example, , may mortgage a crop not im, esse, and to be planted and grown i/n futii/i-o on such premises, but such a conveyance creates only an equitable title, as distinguished from a legal one.-Grant v. Steiner, 65 Ala. 499, and eases cited. If a tenant should mortgage such crops as might be raised or grown by him on some indefinite place which he expected to rent, the conveyance-would, we apprehend, be inoperative and void, as an attempted conveyance of a mere possibility or expectancy, not coupled with any interest in, or growing out of property.-Skipper v. Stokes, 42 Ala. 255; Purcell v. Mather, 35 Ala. 570; Booker v. Jones, 55 Ala. 266. The maxim applies ‘‘ guinonhdbet,illenondat.” So a mortgage of subsequently acquired proqjerty, especially by general terms of description, which is not the product, increase or accretion of something already owned by the mortgagor, amounts to nothing more than a mere agreement to give a further mortgage. It confers no specific lien on such after-acquired property.-Herman on Chat. Mort. § 46; Anderson v. Howard, 49 Ga. 313; Otis v. Sill, 8 Barb. 102; 2 Kent’s Com. 468.
11. The court allowed proof of damages in the present case for certain articles of personalty belonging to the wife of the plaintiff, as a part of her statutory separate estate, which were taken at the same time with the plaintiff’s property. In the
12. The present suit was instituted prior to the time of the alleged ratification of the agent’s act, or trespass, by the principal. If the principal, James II. Burns, adopted the agent’s act, this adoption was not until after the suit was commenced against the latter. Did the court err in admitting the principal to be made a party by amendment of the complaint so as to charge him in this action, the original action being only against the agent? The statute authorizes the amendment of the complaint by striking out, or adding either new parties plaintiff, or new parties defendant, upon such terms and conditions as the justice of the case may require. — Code, 1876, § 3156. This statute must, of course, be construed to mean that only such parties defendant may be added as were liable in the given cause of action at the time the summons was issued, which is the commencement of the suit.
There is no difficulty about the general rules of law governing the ratification of an agent’s unauthorized act by a principal. It is settled that where such an agent, acting m the name amdfor the benefit of his principal, commits an unindictable trespass de bonis asportatis, or, in other words, a trespass which is voidable merely and not wholly void, as imposing a civil and not a criminal liability upon the perpetrator, the principal, after being fully informed of its tortious nature, may adopt it as his own act, and such ratification ordinarily binds the principal to the same extent, and holds him to the same civil responsibilities as if he had originally authorized it. And for many purposes the ratification will relate back to the date of the unauthorized act so as to constitute the principal a tres-,
If James II. Burns, therefore, did not originally authorize the alleged trespass, and did not adopt or ratify it until after this action was brought against John E. Burns, he could not be made a party defendant by amendment of the complaint, as seems to have been done in the court below, at least so as to make him chargeable in this action.-Donaldson v. Waters, 30 Ala. 175.
13. But to hold the principal responsible for damages, in-such cases, it must appear that he ratified the wrongful act of the agent with a full knowledge of its tortious character.-Street v. Sinclair, supra; Lienkauf v. Morris, 66 Ala. 406. The mere appropriation of the fruits of the trespass, without such knowledge, would not be sufficient.-Herring v. Skaggs, 62 Ala. 180.
14. Where the relation of agency exists, and the principal derives a benefit from an act beyond the scope of the agency, the principal will be held to have ratified such unauthorized act by acquiescence, if, after being fully informed of what has been done, he fails to express his dissatisfaction within a reasonable time.-M. & M. Railway Co. v. Jay, 65 Ala. 113. There are many cases, however,- where mere silence, or non-interference will not amount to a ratification.-Whart. Agency, § 86; 2 Greenl. Ev. § 66. Where the relation of agency does not exist when the act is done, but the act is that of a mere volunteer awaiting ratification, the silence of the principal will not be so readily construed into a ratification, unless, perhaps, in
15. It was clearly competent to prove the declarations of James H. Burns, on being first informed of the seizure of the goods, ordering them to be returned to the plaintiff, and also the message to his acting agent, instructing him to have nothing more to do with them. They were in the nature of verbal acts and tended to show a repudiation of the agent’s act.-Moon u. Towers, 8 C. B. (N. S.) 611; Henderson v. The State, 70 Ala. 23.
16. The question propounded to the witness, however, whether, on being first informed of the seizure, “he approved or disapproved of it,” would be irrelevant, if propounded with the view of eliciting a mere mental approval, unaccompanied with acts or words. The meaning of the interrogatory being ambiguous,, and it not affirmatively appearing whether the answer would have been legal or illegal evidence, we can not say the court erred in disallowing it.-Stewart v. The State, 63 Ala. 199.
17. If the defendant James H. Burns, in good faith, and by suitable acts and declarations, repudiated the seizure made by his son, the law would not make it incumbent on him to actively interfere to compel restoration of the goods to the plaintiff, unless they had come into his custody, or under his control. T-Tis failure to counsel restoration, however, or to re-assert control over the mortgage under which the seizure was made, could be looked at by the jury, if satisfactorily proved, as tending, in connection with other facts, to prove acquiescence, being weaker or stronger evidence to this end according to circumstances. The law, however, requires, with good reason, “substantial proof of a ratification” in all cases of trespass.-Ewell’s Agency, *64.
18. The written notice of the sale, and the sale itself, of the mortgaged goods were but cumulative evidence of the intention of the party taking the goods, and as such a part of the res gestae of the alleged trespass. It was, therefore, properly admitted in evidence, in the nature of an admission, and as shedding light on the dominion over the goods previously asserted.
19. The measure of damages in actions for trespass to goods, where the taking is unlawful without more, is genei’ally the value of the goods, or the amount of injury done to them, as the ease-may be, with interest to the date of judgment.-Lienkauf v. Morris, 66 Ala. 406.
20. But when the taking is perpetrated in a rude, wanton, reckless, or insulting manner, or is accompanied with circum
21. The rule is, that, where several defendants are sued in tort for damages, the malice or other evil motive of one can not be matter of aggravation, or ground for vindictive damages against the other. — Wood’s Mayne on Damages, p. 594, § 624. Hence, principals are not generally held liable for such damages by reason of the evil motive of an agent, unless the act-of the agent was fully ratified with a knowledge of its malicious, aggravating, or grossly negligent character; or these matters of aggravation were probably consequent on the doing of the wrongful act ordered by the principal; or unless the agent was employed with a knowledge of his incompetency.-Leinkauf v. Morris, 66 Ala. 406, 415; Pollock v. Gantt, 69 Ala. 373; Kirksey v. Jones, 7 Ala. 622; Fields’ Law Damages, §§ 86, 87; Woods’ Mayne on Dam. p. 57, § 48; Carmichael v. W. & L. Railway Co. 13 Ir. L. R. 313.
22. The letter signed John F. Burns, bearing date January 16, 1875, — the day of the seizure of plaintiff’s goods — which is shown to have been received by the plaintiff through due course of mail, would be relevant against the author, if satisfactorily proved to have been in his handwriting, or shown to have emanated from him. Its contents evince an unfriendly feeling, and it was competent to show malice or an evil motive-on the part of the writer, which may have entered into, or given color to the present transaction. And the same may be said of the endorsements on the envelope. — 1 Greenl. Ev. § 53.
23. It was not competent, however, to introduce in evidence the record of the criminal prosecution instituted by James F. Burns against the plaintiff, about the time of the seizure. We find no evidence in the record tending to show that he originally authoi'ized the alleged trespass, and, if liable at all, it is upon the ground of his having ratified the act. of an agent. All evidence relating to damages “ must be confined to the principal tra/nsaction complained of, and to its attendant circumstances and natural results; for these alone are put in issue.” — 2 Greenl. Ev. § 268. It is true that the commencement of such a prosecution may have tended to show malice against the plaintiff on the part of the prosecutor, but it could not constitute a circumstance of aggravation accompanying the taking, in the absence of all evidence of original jiarticipation
2d. The court erred in allowing proof to be made, by way rof aggravation of damages, that plaintiff had a family, consisting of a wife, and several minor children, such evidence being irrelevant to the issues on trial. Nor would it be competent to show their condition as to clothing, bedding, or other ■apparel or furniture, while. at Montevallo, without proof of knowledge or notice on the part of John F. Burns, at the time he seized the property in question, in which were included articles of the above description. The knowledge of such facts, or any information charging him with notice of them, would have a tendency, however, to show an evil motive, such as to constitute a circumstance of oppression or aggravation.
25. The consideration of motive is always of the highest importance as affecting the question of exemplary or vindictive damages. Good or l>ad faith, therefore, constitutes a vital issue in all cases of trespass, where such damages are claimed, although it may have no bearing on the quest’on of actual damages. Exemplary damages are both punitive and preventive in their purpose, as well as compensatory. They are not only intended to compensate the plaintiff for his actual loss, but are also inflicted “for example’s sake, and by way of punishing the defendant.”-Sedg. Dam. 459, 464; Lienkauf v. Morris 66 Ala. 406, supra; Kirksey v. Jones, 7 Ala. 622. Hence, in such cases, it is competent to show that the defendant acted with the honest belief that he owned the goods, or had a lawful right to take them.-Hawk v. Ridgway, 33 Ill. 473; Hillman v. Baumbach, 21 Tex. 203; Green v. Craig, 47 Mo. 90; Woods’ Mayne on Dam. pp. 58-59, 519. It was permissible, -under this principle, to prove that John F. Burns had good reason to believe, and did believe, that a part of the mortgage .debt remained unpaid, and that the goods seized under the mortgage belonged to the plaiutiff and were included in the mortgage. But this evidence would be admissible only in •mitigation of exemplary, and not of actual damages.
26. In the case of Sylvester v. The State, ante, p. 17, we held that a conviction of the offense of petit íarceny renders a witness infamous, and, therefore, incompetent to testify in a court of justice. Where the value of the property stolen does not exceed the sum of ten dollars, justices of the peace, in their respective counties, have jurisdiction of the offense, to be exercised concurrently with the county courts.-Code, § 4628; Clark’s Man. Or. L. § 1862. The witness, Hill, was, therefore,
2Í. A justice’s court not being a court of record, a certified tra/nscript of a judgment rendered by it is not legal evidence, unless made so by statute, and this is not authorized except as proof of judgments rendered in civil causes. Section 3634 of the Code, making a certified statement of a justice’s judgment presumptive evidence of the fact, clearly has no reference to judgments of conviction in crimmal causes, but must be confined to civil proceedings. When it is desired to prove a judgment of conviction, or other criminal proceeding, it may be done by producing the original papers and docket, sustained by competent evidence of identity, and accompanying proof of their verity.-Kennedy v. Dear, 6 Port. 90; Scott v. McCrary, 1 Stew. 315; Freeman on Judgt. § 410. Or such proceedings may be proved by sworn copies of them, compared by any competent witness.-Jones v. Davis, 2 Ala. 730. Under these views the court did not err in sustaining plaintiff’s objection to the admission of the justice’s transcript, which was not self-proving.-Watson v. The State, 63 Ala. 20.
28. ''Nor can we see that the court ruled erroneously in excluding the book which was proved to be the record of -criminal cases tided by the mayor of Selma. It does not appear from the bill of exceptions whether the witness Ilill, whose infamy is sought to be established, was convicted by the mayor sitting ex officio as a justice of the peace,> of an offense against the State of Alabama, or whether he was convicted merely of the violation of a municipal ord.incmce. If only of the latter offense, the conviction has been held by this court not to l-ender the witness infamous, and, therefore, his competency would be unaffected.-Cheatham v. The State, 59 Ala. 40.
29. The record shows that, by consent of parties, all matters which could be specially pleaded was authorized to be given in evidence under the general issue. This was held in Folkes v. Collier, decided at the December term, 1881,
Other rulings are raised and discussed, but we deem their consideration unnecessary.
The judgment of the City Court is reversed and the cause remanded.
This case has never beeirreported. — Rep.
