LaFayette Railway Co. v. Tucker, 124 Ala. 514

124 Ala. 514 | Ala. | 1899

SHARPE, J.

— The demurrers were properly overruled.

The first count of the complaint as amended conforms substantially to the Code form where the action is for work and labor done upon request.

The second discloses a good cause of action, for though it is silent as to the request, it avers the doing of work for the defendant which was accepted and used by it. These facts are sufficient to raise an implied promise on the defendant’s part to pay the reasonable value of the service, though its performance had not been previously requested. — Abbott v. Hermon, 7 Greenl. (Me.) 118; Day v. Caton, 119 Mass. 513, 20 Am. Rep. 347.

As disclosed by the facts the work claimed for consisted in the alteration of defendant’s road-bed, the construction of Avliich had been originally let to Allen, AndreAvs and Moorefield and by them sub-let to plaintiffs Avho contracted with them to construct the bed according to the profile, and specifications already made and for AAdiich they were to be paid at specified rates by Allen, AndreAVs and Moorefield. Plaintiffs’ evidence tended to sIioav that in addition to the work originally planned and which they undertook for the original contractors, they raised certain portions of the bed and loAvered others, at the instance of defendant’s civil engineer and under his promise that the defendant company Avould pay them for it.

Several assignments of error respecting rulings both on matters of evidence and charges refused to the defendant, appear to be based upon the assumed lack of authority in Cowan, the civil engineer, to act for the defendant in employing plaintiffs. An agent may bind his principal only to the extent of the authority with Avhich he is invested by the principal and one dealing Avith the agent is charged with knowledge of his powers. The authority may hoAvever sometimes be implied where none Avas actually conferred; as where the agent is charged Avith the performance of certain general duties, those acts necessary to the accomplishment of the main object are in general included in the authority. Again, where one holds out another as its representative by its mode of dealing Avith him and others, or by habitual recognition and adoption of his acts, another who is thereby misled to treat with the representative within the scope of his apparent power is not bound by secret limitations upon it.- — Lytle v. Bank of Dothan, (Ala.) 26 So. Rep. 6, s. c. 121 Ala. 215; Golding v. Merchant, 43 Ala. 705; 1 Am. & Eng. Ency. Law, 989. Both Cowan and the defendant’s president testify that Cowan had no authority to make contracts for defendant. It is not disputed however that Cowan was the defendant’s civil engineer having active and personal superintendence of the road’s construction. He testifies that “he had the authority to change the grade of the railroad and have the work done according to the changes.” Such changes if made must have involved work extra of the original specifications. He assumed to represent the defendant when according to his own testimony he told one of the plaintiffs, referring to the grading in question, “to go on and do the work, and whether it was to the grade or not that the company would pay for it.” Whether by this he meant that the comqjany would pay plaintiffs or the original contractors may not be clear, but being addressed to the plaintiffs it might reasonably be inferred that the promise inured to them. This evidence forms a sufficient predicate for the testimony introduced by plaintiffs of Cowan’s acts and statements: That it had not been elicited previously is immaterial. Testimony which is incompetent only for lack of connecting facts may be rendered competent by proof of those facts made subsequently during the trial. — Belmont Coal. Etc. Co. v. Smith, 74 Ala. 206; McCoy v. Watson, 51 Ala. 466.

The statement of Cowan testified to by W. B. Tucker was properly admitted in evidence. It appears to have been made in the presence of one of the plaintiffs while the work claimed for was in progress and was therefore part of the res gesta} and not merely a narration.

The suit is upon the theory of a contract express or implied existing wholly between the plaintiffs and defendant, independent of any contract between defendant and Allen, Andrews and Moorefield. Prices fixed by the latter and settlements made thereon were not proper subjects of inquiry.

The question to McGehee as to whether the work was done according to the contract between defendant and Allen, Andrews and Moorefield.was subject to objection as calling for a conclusion which if material should have been left to inference from proof of the contract specifications and The work as actually done.

Charge 3 is uncertain in meaniiig, particularly as to which contract is referred to by its terms.

The evidence taken as a whole required the submission of the issues of fact to the jury, and it cannot be held insufficient to support the verdict, or that the court erred in refusing a neAV trial. The judgment Avill be affirmed.

DoAvdell J. not sitting.

Affirmed.