Galbreath v. Cole, 61 Ala. 139

Galbreath v. Cole

61 Ala. 139 | Ala. | 1878

BBICKELL, C. J.

1. The complaint contains three counts, the first on a promissory note made by the defendants, the second, on an account stated, the third, for goods and merchandise sold and delivered. The fourth plea, directed to the entire complaint, is of the statute of limitations of three years, which bars only actions founded on open accounts. It is obvious the plea is not an answer to the first or second count. An elementary rule of pleading is, that a plea professing to answer the whole complaint or declaration, is bad on demurrer, if it is an answer to a part only — 1 Chit. PL 523; Adams v. McMillan, 7 Port. 75; Deshler v. Hodges, 3 Ala. 509; Standifer v. White, 9 Ala. 527; Mills v. Stewart, 12 Ala. 90; White v. Yarborough, 16 Ala. 109; Tompkies v. Reynolds, 17 Ala. 109; Wilkinson v. Mosely, 30 Ala. 562. Nor was the pica an answer to the third count of the complaint. An open account affected by the statute of limitations of three years, is one in which some term of the contract is not settled by the agreement of the parties. — Maury v. Mason, 8 Port. 20; Shephard v. Wilkins, 1 Ala. 62; Caruthers v. Mardis, 3 Ala. 599; Mims v. Sturdevant, 18 Ala. 359; Bradford v. Barclay, 39 Ala. 33. The count so far from disclosing that any term of the contract of the sale of the goods was unadjusted by the agreement of the parties, is broad enough to cover a sale at a stipulated price, forfcash, or on any credit expiring before the commencement of the *142■ suit. The plea to have been an answer to the count, ought to have averred the demand stated in it was an open account. Winston v. Trustees of University, 1 Ala. 124; Brooks v. McFarland, 20 Ala. 483; Harrison v. Harrison, 39 Ala. 489. The demurrer on the several grounds assigned, was well taken, and ought to have been sustained.

2. The declarations or conduct of one professing to act as the agent of another, are inadmissible evidence against the principal, without independent proof of his authority. — 2 Whart. Ev. § 1184; Scarborough v. Reynolds, 12 Ala. 252; McDougal v. Dawson, 30 Ala. 553. The authority may, like any other fact, be proved by circumstances. Express, direct evidence, that it was conferred, is not indispensable. The circumstances must be such as are capable of affording a reasonable presumption of it; and if they are not, they are not only insufficient, but inadmissible. The only circumstance shown from which the authority of Moore was to be inferred, was the fact that he had a statement of the account due the plaintiffs, in the handwriting of their book-keeper. If the presumption could be drawn that the book-keeper had entrusted the account to Moore for collection, from his act only, could the presumption be drawn, that he had authority from the plaintiff to appoint Moore their agent, and thus the act of an agent would be converted into evidence of his authority. There was no evidence of Moore’s authority to act for, or bind the plaintiff, and the court should have excluded all evidence of the transactions between him and the defendants.

3. Irrelevant evidence, facts and circumstances from which no fair and just inference can be drawn, should not be admitted. “ The propriety of this rule must be admitted by all, when we reflect that every fact or circumstance given in evidence may be controverted, and if a party could be permitted to give in evidence facts or circumstances which could afford no light, by which to ascertain the truth of the material matter in dispute, many embarrassing questions would be presented, both for the court and jury, which, when solved would not advance us one step in the material inquiry. Such questions might embarrass the court, and often mislead the mind of the jury from the true matter or point in dispute.” — Governor v. Campbell, 17 Ala. 574. The question in dispute was the authority of Moore to control and collect the debt due from the defendants to the plaintiff. Whatever may have been the diligence of the defendants to *143obtain the evidence of Moore, it had no relevancy to this inquiry, and should have been excluded.

The errors of the several rulings of the Circuit Court, to which exceptions were taken, are apparent,and the judgment is reversed and the cause remanded.