George v. Ross

128 Ala. 666 | Ala. | 1900

DOWDELL, J.

The. bill in this case is that of a common creditor, seeking to set aside certain conveyances of the alleged debtor on the ground of fraud. The-decree appealed from was rendered by the chancellor on the facts upon a submission of the cause on pleading and proof for final decree. As averred in the bill the alleged indebtedness ivas a loan of $5,000, made by the complainant to the respondent Sarah J. Ross, and for which she executed the note and mortgage described in the bill. The bill admits payments of $2,000 on the alleged indebtedness, and further shows that the mortgage was 'subsequently foreclosed, and the property bought in for the complainant at and for the-sum of $3,000. The bill admits that the rate of interest agreed upon and 'charged on said loan was usurious, but the complainant seeks to avoid the taint of usury in the contract by averring a subsequent reformation of the contract, whereby the usury was eliminated by remitting the excess of legal interest on said loan.

The alleged reformation of the contract rested in parol, and is further sought to be sustained by showing that it was made by one O. R. Ross, as the agent •of the respondent Sarah J. Ross. The alleged agency and reformation of the contract 'is expressly denied by the respondent. As the bill -shows on. its face that .the principal of the loan was fully paid off and discharged by the admitted payments and the foreclosure of the mortgage, the complainant) at the filing of .the bill, 'could claim no debt against the respondent, Sarah J. Ross, unless the averments of the bill as to .the reformation of the contract are sustained by the proof; and to. sustain this, of course, the agency of O. R. Ross would necessarily have to be proven.

It is a plain proposition that where the question of agency is a disputed fact, the, declarations of ¡the reputed agent are insufficient and incompetent to show the agency; and where, as in this case, the fact of a .general and universal agency is relied on, neither a special agency, nor occasional acts outside of.the special agency, although recognized and ratified by the reputed principal, are sufficient to establish a universal agency, especially in the face of the sworn denial of .the alleged principal.

If it be conceded that C. R., Ross had the management and control of the business of Ross & Co.,.which was «the carriage-shop business and admitted to. be owned by Mrs. Sarah J. Ross, no authority as agent, to agree and consent to the reformation of the contract of loan, could be inferred from the management and control of said business, such reformation of the contract of loan not being within the scope of the authority and employment of said C. R. Ross as the manager of said business of Ross & Co. We think the weight of itlie evidence is decidedly against the theory of a universal agency of O. R. Ross as sought to be established by the complainant.

The bill alleges an expense account, in attorney’s fees and advertisement, of $160, incident to the foreclosure of the mortgage, which, it is averred, should be deducted from the price bid at the foreclosure sale, but no proof whatever was offered to sustain this charge.

The pi’oof shows, that the'loan was made; that the contract was tainted with usury; that the principal of the loan has been repaid; while, on the other hand, the averments of the agency of O. R. Ross to- reform the contract -are not sustained by the evidence. On this theory of the case, the decree of the chancellor dismissing complainant’s bill on the facts was properly rendered. This view of the case renders it unnecessary to consider other questions raised in argument.

Let the decree of the chancellor be affirmed .