56 So. 968 | Ala. | 1911
Appellants are both residents of the state of Georgia. They sued respondents in the chancery court of Geneva county, Ala., to enjoin the defendants from cutting and destroying the pine timber upon certain lands described in the bill, which timber' is and was owned by the complainants, who, however, did not own the land upon which the timber was growing. The respondents answered and denied the equities of the bill, but admitted that they cut part of
It is correctly stated by appellants that the main -qnestion on this appeal is Avhether or not Saye had authority to execute the contract in question so as to bind the appellants. We are of the opinion that the chancellor reached the correct conclusion as to the fact that Saye did have such authority.
The plaintiffs were nonresidents, doing, business in Alabama. It is certain that ostensibly, and so far as
If Saye was tbe general manager of plaintiffs’ business, and tbis contract was witbin tbe line of sucb bus- • iness, and witbin tbe sphere of bis powers as sucb manager, then be bad tbe right to bind plaintiffs as to and by tbis contract, unless it was void under tbe statute of frauds or for some other reason not necessary to be here discussed. If the plaintiffs had intrusted tbeir business in Alabama to Saye, then they could not limit tbeir liability to tbe public or to tbe defendants, by secret instructions to Saye, concerning which tbe public and tbe defendants bad no knowledge nor means of obtaining information.
“A general agent is one employed to transact all tbe business of bis principal of a particular kind or in a particular place, and tbe powers of sucb agent are prima facie coextensive Avith tbe business intrusted to bis care and cannot be narrowed even by secret instructions or limitations not communicated to tbe persons Avith Avhom be deals. — British & Amer. Co. v. Cody, 135 Ala. 628, 33 South. 832; Syndicate Co. v. Catchings, 104 Ala. 176, 16 South. 46.” 5 Mayf. Dig. p. 776.
“Tbe principal may be liable for tbe acts of tbe agent after revocation of the agent’s authority, especially as to third persons wbo never dealt with him previously, if they are justified in believing that sucb agency existed
íí-::- * * jf a person is held out to third persons, or to the public at large, by the principal, as having a general authority to act for and to bind him in a particular business, or employment, it would be the height of injustice, and lead to grossest frauds, to allow him to set up his own secret and private instructions to the agent, limiting that authority; and thus to defeat his acts and transactions under the agency, when the party dealing Avith him had, and could have, no notice of such instructions. In such cases, good faith requires that the principal should be held bound by the acts of the agent, Avithin the scope of his general authority; for he has held him out to the public as competent to do the acts, and to bind him thereby. The maxim of natural justice here applies with its full force that he who, without intentional fraud, has enabled any person to do any act, Avhich must be injurious to himself, or to another innocent party, shall himself suffer the injury, rather than the innocent party, Avho has placed confidence in him. The maxim is founded in the soundest ethics, and is enforced to a large extent by courts of equity. Of course the maxim fails in its application Avhen the party dealing Avith the agent has a full knowledge of the private instructions of the agent, or that he is exceeding his authority.’^ — Story on Agency (9th Ed.) § 127, pp. 143-145.
“Pothier has laid doAvn the general rule in a very satisfactory majmer, and says: ‘But the contract made by my agent, in my name, would be obligatory upon me, if he did not exceed the power with which he was
The contract in question (which the reporter will set out in his statement of .facts) is not for a sale of lands or any interest therein within the meaning of the statute of frauds (subdivision 5 of section 4289 of the Code), nor is it within the influence of section 3355 of the Code, as to conveyances or alienations of lands. It is clearly distinguishable from that class of contracts treated of in the cases of Davis v. Miller-Brent Lumber Co., 151 Ala. 580, 44 South. 639, Brooks v. Cook, 141 Ala. 499, 38 South. 641, and McGhe v. Wilson, 111 Ala. 615, 20 South. 619, 56 Am. St. Rep. 72; but falls within the class treated of in the case of Roquemore & Hall v. Mitchell, 167 Ala. 475, 52 South. 423, 140 Am. St. Rep. 52, Scoggin v. Slater 22 Ala. 687, and Cassell v. Collins, 23 Ala. 676.
This contract was not for, or concerning, the sale of land or of growing timber or of any interest therein. It was for personal services, to be performed by one party for another. It is true that this labor or service consisted in felling trees, sawing them into lumber, and selling the lumber or delivering the same to the owner; but there was no attempt to sell the land or the growing timber or any interest therein. While the contract involved the destruction of growing timber, which is a part of the land, it was not an attempted sale of the. .land or trees or any interest therein. It merely con
Mr. Browne, in his work (the Statute of Frauds, § 233, p. 308), quotes'the following from a New York case: “This was not a contract for sale of lands, tenements, or hereditaments, or any interest in or concerning them, but related to the labor only which had been bestowed upon the land, under the denomination of improvements. Was it- ever supposed that a parol contract to pay for work to be done on land, or for what had been done, was a void undertaking as under the statute? The contract in such case does not go to take from the promisor the land or any interest in or concerning it.”
We do not find that there was any such breach of the contract, on the part of the defendants, as would justify a rescission and an injunction of its further performance. The fact that the sawmill mentioned in the contract was burned, and rebuilt a half mile from the old site, with a change in the name of the mill, was certainly not a sufficient prima facie showing whereon to prevent further performance of the contract by having the lumber sawed at the new site.
We find no error in the record, and the decree of the chancellor is in all things affirmed.