| Ala. | Nov 15, 1904
One of the grounds of demurrer which tbe trial court sustained to tbe complaint, was for a misjoinder of causes of action. Tbe first count, which claimed damages for deceit in tbe sale of a car load of oats was in case, while the third count, both as originally filed and as amended, counted on a breach of contract in the sale. This constituted a misjoinder of causes of action that made tbe complaint subject to the demurrer interposed and tbe court so properly ruled. Tbe cause was then tried, as tbe judgment recites, on tbe first and second counts, by tbe court without a jury. Tbe first count, as above stated, was for deceit in tbe sale of tbe oats; the second count was for breach of warranty
Sam Romano, the brother of the plaintiff testified, that he, acting for the plaintiff, purchased the car load of oats in question from one Guinn, who-, plaintiff claimed, acted as the agent of the defendant in the sale. The plaintiff sought to show'- by this witness the representation made by the said Guinn in the sale, to- which the defendant objected until the agency of Guinn, and his authority as such agent to bind the plaintiff, was first shown. Against this objection, but with the understanding, however, that unless the plaintiff should show the agency of Guinn, the same was to be subsequently ruled out, the witness was permitted to testify that Guinn repreen ted the oats to be Texas Standard Rust-Proof oats and sound, and further, that the oats turned out not to be standard rust-proof oats and were unsound. This witness further testified that Guinn was the agent of defendant, but on his cross examination, it was shown that this was only the conclusion of the witness, for when asked how he knew that Guinn was the agent of Brooks, he answered, “Because I bought them from Guinn, and they w'ore shipped direct from Brooks.” It was not permissible for the witness on this evidence, to' state as a fact that Guinn was the agent of Brooks. The oats were as the testimonj'- of this witness showed, billed and shipped direct to the plaintiff, and a draft drawn with the bill of lading attached. One other witness, Rarden, testified to having purchased oats the same year from the defendant, but could not say that he purchased through an agent, though probably he may have bought through Guinn. On motion of the defendant, the court excluded all the evidence of the agency of Guinn, and all evidence as to the representations made by him, and rendered judgment in favor of the defendant.
The evidence being that the plaintiff bought the oats from Guinn, and that Brooks shipped the oats to plaintiff with draft for the agreed purchase price attached to bill of lading, it was open to the inference that Guinn was acting as the agent of Brooks in the sale of the oats,
Reversed and remanded.