Henderson Law Co. v. Hinson

47 So. 717 | Ala. | 1908

HARALSON, J.

— The plea in the case was the general issue. The first count was a simple count in trespass, for the wrongful taking, by defendant, of “one bay mare mule,” the property of the plaintiff.

The second count was, by leave of court, withdrawn by the plaintiff. The third count .was demurred to by defendant on several grounds, and the demurrer was overruled. It is unnecessary to consider the sufficiency vel non of this count, as the first count is in Code form, and under it all testimonv competent under the third count might have been introduced.

The plaintiff introduced as a witness, one Bledsoe, and asked him to state, “whether or not, during the fall of 1896, he was indebted to defendant law company by mortgage; and if defendant Black, at that time had his mortgage to said company for collection, and if he paid the money on the same to said Black, who delivered the mortgage to witness. These questions were objected to because illegal, immaterial and irrelevant, which objections were overruled. The witness answered, the questions in the affirmative. One of the main questions in the case was, whether Black was the agent of said company for the collection of indebtedness of persons owning the company, including the plaintiff, who paid his mortgage to Black, who had the same for collection; and whether or not he was acting within the scope of his agency in collecting plaintiff’s mortgage. The plaintiff testified, that on the day before Black took the mule from him, said Black had in his possession for collection, two mortgages from plaintiff to the Henderson Law Company, which he said he was collecting for them, and plaintiff settled and paid them to him.

All this testimony Avas competent on the question of the agency of Black in respect to the matter in controversy. ’ • •

It was shoAvn, and admitted, that J. E. Henderson was and had been continuously for two or three years prior to the time of the trial, president of the Henderson Law Company, a private corporation; and it further appears, that in this matter he held himself out as representing said company. It appears that W. O. Mulkey, as the attorney for plaintiff, on December 1 and December 6, 1906, addressed, in behalf of the plaintiff, letters to the Henderson Company, in which he set forth the claim of the plaintiff to the mule and the facts on which it Avas based, and demanded a return of the animal to plaintiff, and stated that unless this was done, and the damage amounting to $50.00 were paid, the plaintiff would hold the company to a ratification of the act of their agent in taking the mule, and asked whether or not they proposed to ratify the transaction and whether they proposed to reimburse the plaintiff in the matter as stated. These letters, it was shown in his reply thereto, were received by Henderson on December 8th, following. He did not therein accede to the request made of him, but stated, that if Mulkey would meet him, he would take pleasure in satisfying him that the company could maintain all the gorund which they had covered in the matter. This correspondence was properly admitted in evidence, as tending to show agency of Black in the matter; that he was acting in the line of his agency; and that the company ratified his conduct, —all as insisted on by plaintiff, which were questions proper f< u- the jury to decide under the evidence.

Under all the evidence, it was open for the jury to find that tbje transfer of the mortgage undeir which Black took the mule, was simulated, and that in taking the mule he was acting as the authorized agent of the defendant. Therefore, the charges requested in writing by defendant were properly refused.

Affirmed.

Tyson, C. J., and Simpson and Denson, JJ., concur.