38 Ala. 208 | Ala. | 1861
The plaintiff’s objection to the evidence of the first witness for the defendant, was to the evidence as a whole. Consequently, if any portion of it was admissible, the objection was properly overruled. A part of-this evidence was, that the witness “saw Peter Desplons, fon one or two years before the drowning of Brister, at different'times officiating in hiring and looking after the negroes belonging to the plaintiff”. Whether Desplons was the agent of the plaintiff to hire or manage Brister, was one of the questions-an the case ; and we think that the evidence above quoted was relevant to this question. If is true thát'í as a general rule, the agency of a party must be proved 'by other evidence than his mere acts, before it can be properly assumed that such acts are binding on his :principal.-Scarborough v. Reynolds, 12 Ala. 259 ; McDonnell v. Branch Bank of Montgomery, 20 Ala. 317 ; McDougald v. Dawson, 30 Ala. 553. And it may also be true, that ¡mere acts, of .the assumed agent, unaccompanied by any, evidence tending for show that the principal had knowledge ofi orrassented thereto, are not even competent evidence to be, submitted to'the jury upon the question of agency. — See 2 Phill. Ev. (C. & H.’s Notes, ed. 1843,) 188—9 ; Scott v. Crane, 1 Conn. 255 ; Moore v. Patterson, 28 Penn. St. R. 505 (512-13) ; Forsyth v. Day, 41 Maine, 382; Dow v. Perrin, 2 Smith, (N. Y.) 325 ; Kidd v. Cromwell, 12 Ala. 648 (652). But, .¡where there is any evidence tending to show the assent of the. principal to the acts of the agent, these acts, in connectkimwith such evidence of the principal’s assent thereto, should be allowed to go to the jury. And if the acts of the alleged agent are of such a nature, or so continuous in their-character, as to furnish in themselves any reasonable ground’ of inference that the plaintiff knew of them, and would not have permitted the assumed agent thus to act in the absence of authority for so doing, the acts themselves are at least competent evidence to be submitted to the jury. — See McDonnell v. Branch Bank, 20 Ala. 313; Krebs v. O'Grady, 23 Ala. 726 ; Kent v. Tyson, 20 N. H. 121; 2 Phill. Ev. (ed. 1843,)
Judgment affirmed.