53 So. 303 | Ala. | 1910
Assignments of error in this case are based upon the giving and refusal of certain special instructions to the jury. For a proper understanding of them it may be stated that Cummins was defendant’s general manager with headquarters at Nashville, Tenn. McCarv was its general manager for Alabama, directing
In this state of the evidence it was the duty of the court to treat this controverted fact as one for determination by the jury, and could deal with it as settled by the great weight of the evidence only when and in the event its action to that end was invoked by a motion to set aside the verdict. The charge given at the request of the plaintiff asserted the proposition that, if the defendant through its general manager bad knowledge of McCary sending plaintiff a telegram engaging bis services for defendant at the rate of $75 a month,, it was the duty of defendant to inform plaintiff of its unwillingness to pay that amount. When considered in connection with the undisputed facts, as it must be, the effect of'this charge was to establish a contract between the parties by which plaintiff was to receive $75 a month and to continue that contract in force until knowledge of defendant’s repudiation was actually communicated to plaintiff. Appellee (plaintiff below) refers to Louisville Coffin Co. v. Stokes, 78 Ala. 372, and a number of cases in the same line, as going to show that McCary bad apparent authority to employ agents,, and defendant could not avoid liability because of secret limitations affecting bis power to employ plaintiff. But those authorities are without influence upon the case for the reason that it distinctly and without contradiction appears that McCary’s proposed advancement of plaintiff with an increase of salary was subject
Something is said of ratification. But the ratification intended is that which is supposed to have arisen from the asserted failure of defendant’s notification of McCary’s mistake to reach plaintiff and plaintiff’s subsequent continuance in the service of defendant. Plaintiff continued in the service of defendant for two months longer, but there was nothing to carry home to Cummins knowledge of the fact that plaintiff was rendering services under the belief that he was to receive an increased salary. On the contrary, Cummins at the end of the first month sent a check for plaintiff’s salary on the old basis, and the check was accepted by plaintiff. He explains his acceptance by saying that McCary stated upon the matter being brought to his attention that there was some mistake, and that he would see the .company and make it all right. This McCary denied. But, assuming the fact as plaintiff states it to have been, he is still seeking to conclude defendant by the unauthorized act of an agent whose lack of authority he must be held to have known. . The charge was not in harmony with this view of the case and should have been refused.
Of the charges refused to defendant little need be said. If the jury should find that McCary understood Cummins according to the intention of the latter at the
Reversed and remanded.