102 Ala. 655 | Ala. | 1893
The appellants sued in assumpsit to
The defendant Brice, being on the stand as a witness for himself, was permitted to testify that he “told Mr. Bynum to order five great gross of pins.” An order for five great gross papers of pins was shown him signed Brice & Donehoo, and he testified that he “did not recollect that he saw the order or directed Mr. Bynum to sign the order shown him.” We are of opinion the court erred in permitting the question and answer. What was stated to Mr. Bynum was mere hearsay. Such evdence was calculated to impress the jury that it was corroborative evidence. The court erred in permitting the defendants to introduce in evidence a note written by the defendants to the agent at Attalla, in regard to the pins; also in admitting evidence “as to how many pins the firm of Brice & Donehoo usually sold in a year,” and “as to their financial rating, and annual business,” and whether the “amount of pins alleged to have been purchased was a reasonable purchase for their trade.” The issue in this case was whether they purchased the pins or not, and this issue could not be properly determined by the consideration of questions affecting the policy or wisdom of the purchase, or the financial rating of the defendants, or the amount of goods suitable for the trade of the defendants. What is here said applies also to the action of the court in overruling objections to cross-interrogatories propounded by defendant to the witnesses A. A. Wright and D. E. Wright, the object of which was to elicit similar testimony. The objections were well taken, and should have been sustained.
The court did not err in excluding the answer to the plaintiff’s 11th direct interrogatory to A. A. Wright.
Under the evidence of the witness Wright, the production of the envelope, in which he testified the order was received, with its post mark at Murphree’s Valley, the admission of Bynum that the address was in his handwriting, the order itself, in connection with the evidence of Donehoo, that the red-lines “resembled Brice’s handwriting”, and other circumstances, were matters for the consideration of the jury in determining the genuineness of the order.
We can not say the court abused its discretion in limiting counsel to thirty minutes on each side for argument; but we suggest that, in the exercise of the use of its discretionary power in this respect, it is the better practice to allow ample time for a full discussion of the facts of the case.
The court erred in that part of the oral charge to which an exception was reserved. If the defendants in fact ordered five great gross papers of pins through a mistake on their part as to how many pins were included in the order, such a mistake can not be visited upon the plaintiff who filled the order as written. Excluding the illegal evidence admitted, and there is not a scintilla of proof tending to show that plaintiff had any notice or knowledge that there was any mistake in the order. Under the evidence in this case charges Nos. 2 and 8, requested by plaintiff, should have been given. Charge 3 was properly refused. The suit was not upon the
The fourth charge omits the predicate if the ‘ ‘order was made by the defendants, or their agent.” This was a prerequisite to plaintiff’s right to recover and was a disputed fact.
The principle of law asserted and intended to be asserted in charges 5, 6 and 7, will be considered together. The general rule is, that a person dealing with an agent does so at his peril, and is bound to know the extent of the agent’s authority, but this rule is not construed to relieve a principal from liability for an act of his agent, acting within the scope of his authority, even though the act done be against instructions of which third parties had no notice ; nor can secret instructions affect the right of third parties dealing in good faith with an agent.— 1 Amer. & Eng. Encyc. of Law, p. 350; Piedmont & Arlington Life Ins. Co. v. Young, 58 Ala 476; Whilden & Sons v. Merchants & Planters’ Bank, 64 Ala. 1, 33; Ala. Gr. So. R. R. Co. v. Hill, 76 Ala. 303; Montgomery Brewing Co. v. Caffee, 93 Ala. 132.
We are of opinion the facts of the case and the testimony of the parties call for the application of different principles from those which apply when a party knowingly deals with an agent. The evidence shows that the transaction began by the plaintiffs sending out from New York a printed circular to defendants, which was received by them, containing blank orders for pins, and a space for the insertion of such advertisments as the purchaser might desire to be placed upon the papers of pins purchased. This printed circular began as follows : “Please put up for us..........great gross papers of pins, 360 pins in a paper, with our advertisement printed at the head of each paper and between the rows,” &c.. The only blank in the printed order, to be filled by the purchaser was for the number of “great gross papers of pins,” and such advertisement as was desired by the purchaser. The blank in the present case was filled with the figure “5.” It is not denied that plaintiff authorized their clerk to make out an order on one of these printed forms, and that the order was for “5.” Their contention is that they instructed their clerk to make the order for “5 great gross of pins,” instead of five great gross papers of pins. The order was not signed
For the errors noted the case must be reversed.
Reversed and remanded.