Capital Security Co. v. Owen
72 So. 8
Ala.
1916
Check Treatment
THOMAS, J.

The plaintiff’s cause was tried in the law and equity court upon the common count for money had and received. The defendant pleaded, in short by consent: (1) the general issue; (2) estoppel; and (3) waiver of the fraud.

To the refusal of the court to give charges requested in writing by the defendant, as well as to the giving of the portion of the general charge excepted to, error is assigned.

The appellee insists that by the act of September 25, 1915, charges in writing moved for by either party become a part of *387the record, and must be presented for review as a part of the record, and not by bill of exceptions. The proper construction of this act under the adjudicated cases (Petty v. Dill, 53 Ala. 641; Conway v. Clark, 171 Ala. 391, 55 South. 117; Diggs v. State, 77 Ala. 68; Irby v. Kaigler, 6 Ala. App. 91, 60 South. 418) is not now presented. The trial was had, the bill of exceptions presented to and signed by the trial judge, and the appeal perfected, before the passage of the act. — Gen. Acts 1915, p. 815.

(1-3) The bill of exceptions must affirmatively show that exception to a part of the oral charge was. taken pending the trial, and before the jury retired. All the presumptions are that the trial court committed no error.—City of Montgomery v. Gilmer, 33 Ala. 116, 70 Am. Dec. 562; Reynolds v. State, 68 Ala. 502; Moore v. State, 146 Ala. 687, 40 South. 345; Meadows v. State, 182 Ala. 66, 62 South. 737, Ann. Cas. 1915D, 663. We are of the opinion that the record affirmatively shows that the exception to the’part of the oral charge was taken pending .the trial and before the jury retired. After the exception was taken, the court concluded the oral charge.

When' the part of the charge excepted to is considered with the whole of the oral charge, it is obvious that no error was committed by the trial court in .the oral charge.—Williams v. State, 83 Ala. 68, 3 South. 743; Decatur Co. v. Mehaffey, 128 Ala. 242, 29 South. 646; Reeves v. State, 13 Ala. App. 1, 68 South. 569.

(4) It has long been the law where the agent, in selling chattels for the vendor, makes guaranties, agreements, or representations as a part of the contract of sale, or inducement thereto, and suit is brought by the vendor against the vendee, the latter is bound by the guaranties, agreements, or representations of the agent.—Philips & Buttorff Mfg. Co. v. Wild Bros., 144 Ala. 545, 39 South. 359; Gilliland v. Dunn &. Co., 136 Ala. 327, 34 South. 25; Holman v. Calhoun, 146 Ala. 690, 40 South. 356; Williamson v. Tyson, 105 Ala. 644, 17 South. 336; Atwood v. Wright, 29 Ala. 346.

The Philips & Buttorff Mfg. Co. Case is cited in 31 Cyc. 1259, with many authorities, to the effect that the principal cannot ratify a contract made for him by an agent, without also ratifying and becoming bound by the terms and conditions, although unauthorized, upon which it was made, nor ratify, without ratifying the representations and warranties, and all other instrumentalities employed by the agent as an inducement to effectuate or bring about the contract.—31 Cyc. 1259.

*388•(5) The burden of proving the agency rests upon the party affirming its existence.—Ebersole v. So. B. & L. Ass’n, 147 Ala. 177, 41 South. 150; George v. Ross, 128 Ala. 666, 29 South. 651; Sellers v. Com. Fire Ins. Co., 105 Ala. 282, 16 South. 798; Spratt v. Wilson, 94 Ala. 608, 10 South. 209. So, of one who would relieve himself from personal liability on the ground of agency.—Gillaspie v. Wesson, 7 Port. 454, 31 Am. Dec. 715. And it also applies to one who would charge another as principal with the act of an alleged agent.—Ebersole v. So. B. & L. Ass’n, supra; Philips & Buttorff Mfg. Co. v. Wild, supra; George v. Ross, supra; Spratt v. Wilson, supra.

In Fulton v. Sword Medicine Co., 145 Ala. 331, 40 South. 393, where the suit was based upon a written order, signed by the defendant, addressed to the plaintiff, by which the defendant ordered certain goods at specified prices, and wherein it was stated that “none of the medicine shall be returned for credit,” and “I, or either of us, accept this order on terms stated" above. There is no verbal agreement aside from this order, of which I have a duplicate,’ the court said: “The order signed by defendant, when accepted by the plaintiff, constituted a contract, which the parties had reduced to writing, and the defendant could not contradict the same by parol testimony. While it is true that, where -goods are sold by an agent, the general rule is that, if the principal ‘seeks to avail himself of the benefits of the contract made by his agent, he is bound by the representations made by the agent.’—Gilliland v. Dunn, 136 Ala. 327, 34 South. 25; Williamson v. Tyson, 105 Ala. 644, 17 South. 336. Yet this does not contravene other recognized principles of law. ‘The doctrine of apparent authority can be invoked only by one who has been misled to his detriment by the apparent authority of the agent.’—Patterson v. Neal, 135 Ala. 482, 33 South. 39. And when a traveling salesman sells goods to a customer and the customer signs a written order to the principal, stating distinctly, as in this case, that ‘none of the goods shall be returned for credit,’ and that ‘there is no verbal agreement aside from this order,’ it shows notice to him that the agent has no authority to make any verbal agreements varying the terms of the written contract; and, if he agrees with the agent that the agent is to inform the principal that he is not to ship the goods unless he agrees to contradictory terms, the principal is not bound thereby, unless the agent informs him before the goods are shipped.”

*389This case is followed in Green & Sons v. Lineville Drug Co., 167 Ala. 372, 52 South. 433.

(6) If the appellee signed a writing that embraced the terms of the home investment certificates in the appellant company, he was bound by its terms, unless he was-prevented from reading it by the fraudulent misrepresentation of the seller or the seller’s agent.—Wooddy v. Matthews, 194 Ala. 390, 69 South. 607; Prestwood v. Carleton, 162 Ala. 334, 50 South. 254; B. R., L. & P. Co. v. Jordan, 170 Ala. 536, 54 South. 280; Leonard v. Roebuck, 152 Ala. 315, 44 South. 390.

It is unnecessary to discuss the evidence in this case. It is sufficient to say that after its careful consideration we are of the opinion that the evidence does not bring the ease within the influence of Sou. Loan & Trust Co. v. Gissendaner, 4 Ala. App. 523, 58 South. 737, but that it is governed by the recent decision of this court in Capital Security Co. v. Gilmer, 190 Ala. 340, 67 South. 258.

The defendant was entitled under the evidence to the affirmative charge; and for the refusal of the court to give such written charge at the request of the defendant the judgment is reversed, and the cause is remanded.

Reversed and remanded.

Anderson, C. J., and Mayfield and Somerville, JJ., concur.