Cobb v. Malone & Collins

91 Ala. 388 | Ala. | 1890

McCLELLAN, J.

On a former appeal in this cause, it was held that the acceptance by A. A. Cobb of a second mortgage from Crutchfield, in full satisfaction of the debt secured by a mortgage on property which Malone efe Collins had converted, and for damages on account of which conversion this suit was brought, operated a release of the latter, on the principle, that “a release of one is a discharge of all joint conversioners.” 86 Ala. 571. It was further determined on that appeal, that if the second mortgage was taken with the understanding that this suit should be dismissed in the event the sum secured by it was paid in a week or two, that agreement was not available to the defendant “as an accord and satisfaction, or a release;” and further, that proof of letters written by or at the direction of plaintiff’s clerk, to plaintiff’s attorney and to Malone & Collins, to the effect that the claim against the latter had been settled, and the suit was to be dismissed, was not admissible, in the absence of evidence tending to show that the clerk had authority to write them.

Adhering to these principles, the judgment brought under review by this appeal must be reversed. ■ The letters referred to were again admitted in evidence, and we search the record in vain for any evidence of authority on the part of the clerk either to write them or enter into the agreement which they purport to advise plaintiff’s attorney and defendants of. There is no evidence that Cobb ever authorized his clerk to agree to a satisfaction of his claims, either against Crutchfield, or Malone cfe Collins, under the first mortgage, in consideration of the execution by the former of a second mortgage; nor is there an proof that he ever ratified such an agreement, if in fact it was ever entered into between his clerk and Crutchfield, as to which the testimony is conflicting. On the contrary, wdiile it is true that plaintiff’s attorney received a letter purporting to be signed by plaintiff, directing him to.dismiss the suit, and was shown a letter of like import addressed to Malone & Collins, he declined acting on them, because of a doubt of their genuineness ; and after the existence of these letters may be presumed to have come to the knowledge of plaintiff, he not only did not ratify the arrangement they evidenced, but, virtually repudiating them, continued the prosecution of this suit. Meantime, plaintiff had been informed that his clerk had agreed with Crutchfield to dismiss the suit, if the mortgage was paid in a week or two. The mortgage was not paid within that time, and he then had it recorded. We can not conceive that, under these facts, the recording of the mortgage could be any evidence of the ratification of that agreement, which, according to Crutchfield’s evidence, was made between him and plaintiff’s clerk. Whether the one or the other, or neither of these agreements, had been made, it was equally the right, as well as the part of business prudence of the plaintiff, to put the instrument to record; and the fact that he did this affords no inference that he had acquiesced in the alleged unauthorized discharge of Malone & Collins. • It was an error, therefore, to admit testimony, the only tendency of which was to prove, a release which was .never agreed to by plaintiff, nor authorized by him, nor ratified by him, if indeed it was ever made in his name and behalf, by a person who had no authority to bind him thereby. The court should have excluded all this testimony, and have instructed the jury, instead of the charges which were given, that there was no evidence of accord and satisfaction of which defendants could avail themselves.

Reversed and remanded.