108 Ala. 241 | Ala. | 1895
This is the third appeal in this cause. 101 Ala. 368 ; 105 Ala. 344. The action is by Simon & Co., of New Orleans, for $198.09 for goods sold defendant, Johnson, and for the same sum on account stated. It is not disputed that in the summer of 1890, J. B. Car-lisle, a drummer of plaintiffs, soli the goods to defendant at the price sued for, which the plaintiffs duly shipped to, and were received by defendant. The bill was to mature February 1st, 1891, and before it was due, defendant paid the amount thereof to Carlisle, less a discount allowed by Carlisle. As settled by our former decisions, supra andas admitted on the present trial, Carlisle had no authority to make the collection. He was examined as a witness by the defendant, and testified thatin December, 1890, he was in New Orleans where plaintiffs live, and made arrangements with them to work out the amount he had collected from defendant, and plaintiffs were to let the amount stand until he worked it out, upon condition that he was to abstain from drinking and playing cards, but that he did not quit drinking or playing cards and plaintiffs discharged him. After he was discharged he continued to send in orders to the. plaintiffs and they filled them for about two months, although he was discharged, and he drew on them for part of his salary but they would not pay the draft.
Two of the plaintiffs testified, in their own behalf, that they had J. B. Carlisle employed as a travelling salesman for them during the year 1890, selling by samples only ; that Carlisle visited Geneva, Ala., in June, 1890, and sold the bill of goods to defendant; that sometime in October, 1890, defendant wrote plaintiffs that he had paid Carlisle for the goods and had his receipt in full for the amount, that plaintiffs replied, at once, that Car-lisle had ho authority to collect and that they would not. recognize the settlement . That,.sometim-e fin December,. Carlisle was in New Orleans, and-they.- showed him defendants letter regarding the collection of the amount, when he denied having collected it, and said that defendant was mistaken ; that he owed defendant $75, in
The defendant requested the following charge, which the court gave : ‘ ‘If Carlisle worked for plaintiffs for two months with the understanding that the value of his labor should be credited on the demand against Johnson, defendant would be entitled to credit for the amount due for such services.” The charge was improperly given. It ought to have been refused. There is no evidence that Carlisle worked a month, or any other period of time, under the conditional arrangement entered into between him and plaintiffs. Ündet the arrangement, the hiring
Reversed and remanded.