26 Ala. 633 | Ala. | 1855
—Every man who employs another to do an act which the employer appears to have a right to authorize him to do, undertakes to indemnify him for all such acts as the agent does not know to be unlawful, and as would be lawful if the employer had the authority he pretends to have.— Adamson v. Jarvis, 4 Bing. 66; Story on Agency, § 339.
Where two persons are claiming title to personal property adversely to each other, and one oí these claimants calls upon another person to take it, and the latter has reasonable ground to believe that his employer is the owner of the property, and therefore takes it, without knowing at the timo that such taking is a trespass or tort, a promise of indemnity will be implied to such person, although it subsequently turns out
In all such cases, a promise of indemnity is implied, upon the plain dictates of reason and natural justice.—Gower v. Emery, 18 Maine R. 79; Parsons on Con. 36, n. (x).
The promise thus implied extends only to such losses and damages as arc direct and immediate, and naturally flow from the execution of the agency. In other words, the agency must be the cause, and not merely the occasion of the losses or damages, to found a just right to reimbursement. — Story on Agency, § 341; Story on Contracts, § 176.
Assumpsit lies upon such implied promises. An action on the case is equally maintainable, and is said to be the more appropriate remedy.—Myers v. Gilbert, 18 Ala. 467; Adamson v. Jarvis, and other cases cited supra. But whether the action be assumpsit or case, the declaration is bad, on demurrer, if no breach is stated in it.—1 Chitty's Pl. 337.
When the declaration is in case, as it is here, and shows that the losses for which the agent is seeking indemnity from the principal, arc certain damages recovered against the agent for taking property by the direction of the principal, in an action of trespass brought against the agent by the true o wner of the property, the declaration is defective, if it omits to state that the taking by the agent was without knowledge on his part, at the time of the taking, that it was a trespass.— The agent must, in his declaration, negative the existence of such knowledge on his part, although the onus of proving the existence of such knowledge may be on the principal ; for the rule, that the allegata and probata must correspond, is not of universal application. — Carpenter v. Devon, 6 Ala. 718.
Each count of this declaration is bad, for the omission of a breach, and also for failing to aver that the agent, at the time of the taking, did not know that it was a trespass or tort.
An averment that the principal had notice of the losses and damages sustained by the agent set forth in the declaration, and failed to pay the same, would be a good breach in such a case as this. ’
Wo admit the rule, that the law will not enforco contribution nor indemnity between wrong-doers. But that rule does pot apply -to any case, where the act of the agent was not
That rule is applicable, whenever it appears that the act of I the agent was manifestly illegal in itself. For example, if A1 employ B to assault 0, and B thereupon does assault C, and is subjected to damages therefor, B cannot recover such damages, from A : the act of B being clearly illegal in itself, the law implies that he knew it to be so, and therefore will not enforce his claim to indemnity.
The rule also applies, whenever it appears that, although the act of the agent was not manifestly illegal in itself, yet, in fact, he knew it to be unlawful at the time he did it. For example,' if Appleton, at the time he took the property claimed by Moore, knew that Moore had no just nor lawful right to it, and that Moore’s claim was groundless and iniquitous, and that it really belonged to some other person, such knowledge on the part of Appleton at the time of the taking, would defeat any recovery by him for any loss resulting from .such taking, although he took it as the agent of Moore, and by Moore’s direction.— Chappell v. Wysham, 4 Harris & Johns. 560.
For the error of the court below in ovérruling the demurrers to the several counts of the declaration, its judgment is reversed, and the cause remanded.
