79 So. 373 | Ala. | 1918
This bill was filed by appellant against the appellees to foreclose a mortgage executed to the appellant by E. J. Beasley and wife on January 24, 1912, to secure the payment of $750 and annual interest installments thereon. In 1909 Beasley agreed to buy, and did buy, ten shares of the preferred capital stock of the complainant corporation of the par value of $1,200. The sale was effected by Barnes and Henry. They claimed and undertook to represent the complainant in the premises. According to the agreement, Beasley paid, in cash, to Barnes $150, and gave his note for $300, payable to the complainant. He later paid this note to the complainant. With respect to the balance of the purchase money, viz. $750, Beasley gave no security; and so for the reason that Barnes assured him at the time (1909) that the company would send him (Beasley) a certificate representing ten shares of preferred capital stock in the company, and that the balance of the purchase money would be paid by the dividends of the company. Subsequently, when Beasley did not receive the certificate, he complained to Barnes, and Barnes advised him to pay the $300 note to the company, to the end that he might get the certificate. Beasley paid this note to the company; but the company refused to send the certificate until the balance ($750) was paid. Beasley reported this refusal to Barnes; and Barnes told *36 Beasley to "manage some way to get that certificate." Barnes then suggested to Beasley that Beasley give the company his note for the balance, viz. $750. The company sent Beasley the mortgage here sought to be foreclosed. Beasley and his wife signed it. Beasley then received from the company a certificate representing ten shares of common stock, instead of, as promised, preferred stock. Beasley has paid at least two of the interest installment notes secured by the mortgage. On March 4, 1914, Beasley wrote the company as follows:
"Your communication to hand. I have had some serious sickness in my family which has crippled me financially. I will be glad to pay the interest on my note by April 1st. Hope you will bear with me as I am anxious to do the right thing."
This bill was filed March 1, 1917. So far as this record shows, Beasley never made to the company any suggestion, demand, or protest based upon the representations or assurances given by Barnes in 1909, unless the statements made by Barnes to Beasley can be attributed to the company as upon the theory that Barnes was the authorized agent of the company in the premises, or that through acts of the company the ratification or confirmation of what Barnes did or said in his communications or dealings with Beasley was effected.
From the evidence the court was authorized to conclude as of fact that Barnes was the complainant's agent to consummate the sale of its capital stock to Beasley: for that matter, to effect sales generally. Where the fact of agency rests in parol, or is to be inferred from the conduct of the principal, and there is evidence tending to show the agency, the acts or declarations of the agent are admissible. Salvo v. Wilson,
When the existence of a personal relation is once established, the law presumes its continuance as before, until the contrary is shown, or until a different presumption is raised, from the nature of the subject in question. 1 Greenl. on Ev. (15th Ed.) § 41; Friend v. Yahr,
Affirmed.
ANDERSON, C. J., and MAYFIELD and GARDNER, JJ., concur.