Herring, Farrell & Sherman v. Skaggs

73 Ala. 446 | Ala. | 1882

BRICKELL, C. J.

— We can not regard it as necessary to consider separately the. several causes of demurrer assigned to the complaint. Some of them are not well taken, if the'sufficiency of the complaint was tested by common law rules. The Code establishes a system of pleading essentially different from that prevailing at. common law, and the forms of complaint prescribed are, it has been said, rather a statement of legal conclusions than of the facts which constitute the cause of action. Randolph v. Shoppe, 42 Ala. 265. These forms have the force of law, and it is expressly declared that substantial conformity to them is sufficient. — -Crimm v. Crawford, 29 Ala. 623. This action corresponds to the common law action on the case for a false representation or warranty in the sale of chattels; and a form of a complaint for a breach of warranty in the sale of chattels is prescribed by the Code, to which this complaint conforms substantially, and it must, therefore, be regarded as sufficient. — Herring v. Skaggs, 62 Ala. 180.

It is a general rule in pleading at common law, unchanged . by t^e Code, that a replication must not depart from the allegations of the declaration in any substantial matter. — 1 Chit. Pl. 643; McAden v. Gibson, 5 Ala. 341; Eskridge v. Ditmars, 51 Ala. 245. A departure in pleading is said to be when a party quits or departs from the case or defense which he has first made, and has recourse tó and assumes another new ground of complaint or of defense. This is not allowed, “ because the record would, by such means,'be spun into endless prolixity.” 1 Chit. Pl. 644. But while it is not permissible for the plaintiff to depart from the cause of action stated in the complaint, and by a replication to resort to another new cause of action, yet, when the cause of action is stated generally in the complaint, he may, if necessary, in a.replication to a special plea, restate it in a more minute and circumstantial manner. — 1 Chit. Pl. 624. This is the character of the present replication ; it is a more precise and particular repetition of the cause of action stated in the complaint, rendered necessary, or supposed by the pleader to have been rendered necessary by the special plea. The demurrer to it was not well taken.

The plaintiff, having read in evidence a part of the deposition of Farrell, taken at the instance of the defendants, thereby made it his own testimony to the same extent as if he had taken it. — Jewell v. Center, 25 Ala. 498. The defendants were entitled to read the whole; it could not be garbled by the plaintiff. But we can not see what injury could have resulted from postponing the reading of the whole, until the defendants were introducing their own evidence. The reading of. the whole by them was not in the nature of a cross-examination of a witness introduced by the plaintiff; and it was a matter of discretiqjp in the circuit court whether it should be read while the plaintiff was introducing evidence, or deferred until the introduction of evidence in defense.

The exhibition by Stewart of the metal, and his declarations in reference to it were contemporaneous with the sale and the alleged false representation. They were parts of the res gestee, taking the term in its narrowest sense. If the recollection of the witness was at fault as to the’ name given the metal, there was no impropriety in repeating it to him, and inquiring, though the inquiry was in the form of a leading question, whether the name repeated was the true one. Leading questions are of necessitj' often allowed to aid the memory of a witness in recalling names. — 1 Whart. Ev. § 501.

The statement of the witness Storey, that the money loaned him by the plaintiff was taken from an old style Herring safe,' was not objectionable. In describing such a transaction, a witness will often involuntarily speak of time or place as connected with it.

It is an elementary principle, that an authority conferred upon an agent, whether general or special, unless a contrary intent is plainly manifested, includes the means which are necessary and usual to execute it with effect. — Story on Agency, § 60. An agent, “authorized in general terms to sell, is assumed to have power to take all the usual steps to affect the sale; and of what is usual, the jury is to determine.” — Whart. on Agency, $5 187. The sale in the present case was made by an agent of the defendants, who was without express authority to warrant the quality or capacity of the safe, or to make any other representation or warranty, than that it would correspond to a printed description with which he was furnished. It was in reference to this view of the case, that we said, when it was here at a former term : “ In the absence' of proof of express authority to warrant, it was incumbent on the plaintiff,to show a custom in the sale of safes to warrant them as burglar-proof. Either the express authority, or the authority implied from such proven custom, would constitute the act of the agent the act of the principal; but the law does not imply the authority from the fact that Stewart, who conducted the sale was a general agent.” Herring v. Skaggs, 62 Ala. 186. The custom to which we referred was the usage of sellers of safes, so well settled, notorious, and continuous, as to raise a fair presumption, that it was known to buyer and seller, and that sales were made in reference to it. Such a usage is a fact, and is as capable of proof as any other fact. It may be proved by evidence of facts and intsances in which it has been acted upon. It is not proved, nor is evidence that it was acted upon in a few particular instances of dealing, admissible to establish its existence.- — Desha v. Holland, 12 Ala. 513; Austill v. Crawford, 7 Ala. 335; Smith v. Rice, 56 Ala. 417; M. & M. R. R. Co. v. Jay, 61 Ala. 247; Adams v. Otterback, 15 How. (U. S.) 539; Berkshire v. Proctor, 7 Cush. 417. Applying this rule to the evidence which was introduced to show'- a usage prevailing in Talladega for agents offering safes for sale to represent the qualities of the safes, and it ought not to have been admitted. Three isolated im stauces of sales made in the course of three or four years are not sufficient or competent evidence to establish a usage of trade, by which the rights and liabilities of parties are to be measured and determined, to the exclusion of the known and settled principles of law. Usages of trade are not recognizable, unless they have the essential elements of certainty, notoriety, and continuity, bringing themselves home to the knowledge of those who are concerned in the trade or business to which they may pertain. Tile courts adhere strictly to this principle, as essential to a fair administration of, justice. If it were departed from, uncertainty, insecurity in the transaction of business, and injustice would result. Parties could not know what were their rights or duties, if they were to be determined by loose evidence of some merely local, indefinite and partial usage. Evidence of a usage of sellers to representcthe qualities of safes they sold or offered for sale, is essentially different from the usage it was permissible to prove in this case — a usage to give an extraordinary and hazardous warranty, that the safe had capacity to resist, for a definite number of hours, the arts or devices or violence of burglars. Representations or warranties of the character and quality of a thing sold refer to the thing itself, and it may be usual to make or give them. They have generally no reference to the acts of others, especially the unlawful acts of criminals ; certainly not of absolute or comparative security against such acts. It was error to allow this evidence to be submitted to the jury. And it is a necessary result, that the several instructions which are based upon the hypothesis of the existence of a custom or usage in Talladega, for sellers, or the agents of sellers of safes to warrant them, or to make a warranty or representation of the kind imputed to the agent Stewart, are erroneous.

• It is an elementary doctrine, that a principal may, by ratification, render himself liable for the unauthorized acts or declarations of his agent. And if an agent to sell defrauds a buyer dealing with him, the principal, not having authorized or participated in the wrong, is entitled to a rescission of the contract; but if, with knowledge of the wrong, he receives or retains the purchase-money, he can not claim immunity on the ground that it was the unauthorized act of the agent — Herring v. Skaggs, 62 Ala. 186; 1 Smith’s Lead. Cases (7th Am. Ed.) 349. But merely receiving or retaining the purchase-money will not operate a ratification, or involve the principal in liability for the fraud of the agent. Ratification is in the nature of a contract,-, it is the adoption of, and assent to be bound by the act of another. There can be no ratification, unless there is previous knowledge of all the facts and circumstances attending the act* to be ratified. — Story on Agency, § 239. There is a want of all evidence that the defendants had any knowledge or information that Stewart had made the representation which is averred to be false or fraudulent, or had given any warranty whatever as to the quality of the safe, until after the commencement of this suit. The instructions to the jury upon this point may state a correct legal proposition, but they are without evidence to support them; they are abstract. It is a rule of this court, that an abstract charge, asserting a correct proposition of law, is not an error for which a judgment will be reversed, unless we are reasonably convinced that it must have misled the jury.- — Towns v. Riddle, 2 Ala. 694; Partridge v. Forsyth, 29 Ala. 200 Russell v. Erwin, 38 Ala. 44. There can be no doubt that the' jury were misled by the instruction to which we have referred; the verdict is convincing.

The judgment is reversed and the cause remanded.