McTyer v. Steele

26 Ala. 487 | Ala. | 1855

GOLDTHWAITE, J.

—The general rule is, that to make the principal personally liable, on a written contract made by his agent, it should be executed in his own name, and appear to be his own contract. — Story on Agency, § 161. But there are many exceptions to this rule. Thus it is well settled, that a captain of a ship has an incidental authority to make all contracts belonging to¿he ordinary employment of the vessel, and if he enters into such contracts in his own name, although he may be personally liable, his principal is also responsible. Pickering v. Holt, 6 Greenl. 160; Abbott on Shipp, part 2, ch. 3, § 1, od. 1829; Story on Agency, § 161, 162, and cases there cited. So, a bill of lading, signed by the master in his own name, in the usual course of the employment of the ship, will bind the owner. — Story on Agency, § 161. It is true, that such a writing' may partake of the character both of a receipt and contract, and that, in its latter quality, it is not to be contradicted by parol; but evidence to fix a liability on others than the party who signed it, is not varying the contract in the sense meant by Mr. G-reenleaf in his work on Evidence, § 305. Testimony could not be received to show that the article shipped was to be delivered at a different port, or to other consignees than those specified in the bill of lading. As to these and like matters, it is properly regarded as a contract, and governed by the same rules ; but the principle does not shut out testimony, which shows that it is the contract of other persons than him in whose name it is executed.

It follows from what we have said, that if the bills of lading were executed by the captain, or chief officer of the boat, and in the usual course of its business, the contract, although made in his name, was equally the contract of the owners. Any facts, therefore, which conduced to show the ownership of Hendrix and Hanna, wore proper, in connection with other facts, as making out one link in the chain against them, and the evidence to that effect was improperly rejected by the court.

From what we have said it follows, also, that the charge of the court, to the effect that Hendrix and Hanna could not be connected with the bill of lading by parol proof, was also erroneous.

The judgment of nonsuit must be set aside, and the cause remanded.