Langham v. JacksonLangham v. Jackson
Thе court gave the general affirmative charge at the request of the plaintiff. The instant assignments of error relate to the action of the court in refusing to allow in evidence testimony as to the acts, conduct, and declarations of William B. Powell relating tо the taking by the Bank of Bay Minette of the note of defendants and one C. B. Thompson. The suit is by the superintendent of banks on the indorsement by defendants of the note to said bank by said Thompson.
The real defense by the indorsers is that the indorsements were conditional; that the note would be also indorsed by W. D. Owens, Jr.; and that it was not so indorsed before it was taken and used by thе bank with knowledge of the character of defendants’ respective conditionаl indorsements.
The question of agency and how the same may be shown, where that fact rеsts in parol, has been the subject of frequent discussion by the courts. When the fact of agency rests in parol, or is to be inferred from the conduct of the principal, and therе is evidence tending to show agency, the acts and declarations of the alleged agent become admissible to enable the jury to determine whether or not there wаs agency. Roberts & Sons v. Williams,
It is further declared by this court that, where it is shown that the actor has beеn held out by the principal as being his agept, or as possessing the authority assumed by such аgent within the scope of the principal’s business, the rule of apparent authority can be invoked by one who has been misled thereby to his detriment. Pacific Mut. Life Ins. Co. v. Hayes,
There' was error in excluding the evidenсe sought to be evoked by the questions sought to be propounded to Mr. Woodson, and on which assignments of error from one to five, inclusive, are based. The agency and interеst of Mr. Powell in the premises were subject of a proper cross-examination, аnd this was denied.
The questions sought to be propounded to Mr. Woodson were;
“Now, before he brought these notes back to you, and they were deliverеd to the bank, didn’t you receive a phone call from one of the defendants, telling you about the circumstances under which these indorsements were obtained, and telling you nоt to discount those notes?”
“Didn’t Mr. Briars there call you up on Tuesday morning before these nоtes were delivered to you, and explain to you the circumstances under which these indorsements had been gotten, and tell you for the bank not to take these notes?”
“Now before he took — he went out with these notes to get these indorsements, did he not *418 say to you that you and Catrett should not have loaned Thompson that $2,000 and more, that you had loaned him without security, and that, if the bank examiner came down and found that out, it would cause trouble, and did you and he not agree then that he should go and endeavor to get a notе with indorsements in order to protect the bank on this loan that was made to Thompson withоut security?”
These questions called for competent evidence tending to show notice to the bank and the circumstances entering into the securing of the indorsements. No opinion of the witness was called for — merely the facts entering into or concomitаnt with the in-dorsements and the res gestae thereof.
The fact of Powell’s interest in the bank аnd his participation in the conduct of its affairs, as making or approving loans, at оr about the time of the making of the Thompson loan or renewal thereof, with the indorsements, should have been given the jury, so that they might consider the bona tides of the defense of conditional indorsement secured by Powell.
The witness Lqngham, and the other defendants as witnesses, should have been permitted to answer the question, “Just state what occurred at the time that the notes 'were indorsed,” as calling for the res gestae of that act. So, also, of the question, “What, if anything, did the man Powell say to you on that occasion, before you indorsed the note, in regard to indorsing it?”
The facts and circumstances becoming a part of or entering into and inducing the indorsements of the note by the respective defendants were relevant under the defense pleaded.
■The judgment of the circuit court is reversed, and the cause remanded.
Reversed and remanded.