Singer Manufacturing Co. v. McLean

105 Ala. 316 | Ala. | 1894

BBICKELL, C J.

1. The acts or declarations of an agent, done or made while in the exercise and within the scope of the authority entrusted to him, affect and bind the principal. But acts or declarations not within the scope, or done or made while notin the exercise of the authority, as to the principal, are resinter alios acta, and inadmissible as evidence against him. As expressed by the only witness testifying in reference to the agency of Donald, his single duty was “to make an inventory or check up the business of McLean, and report to the Montgomery office.” He was without authority to make any settlement with McLean, or to receive from him machines or other property belonging to the plaintiff. The relation between him and the plaintiff was that of a special agent, limited tp a single transaction and limited in authority. The authority was to make an inventory Pr check up the business of McLean. Ascertaining its nature and extent, by taking it in connection with McLean’s relation to the plaintiff and the business he had been transacting for it, there is no room for an extension of the authority beyond the mere taking lists or accounts of the machines or other property of the plaintiff in the possession or under the control of McLean, and of all machines or other property of which he had made disposition. The declaration imputed to him, that McLean owed the plaintiff $31, which he was willing to accept, was of a matter or fact he had no authority to ascertain, and it is not out of place to observe, a,matter or fact he had not the means of ascertaining, unless he relied wholly on the books, or papers, or statements of McLean, for he had not any statement from the plaintiff of McLean’s accounts. The declaration or admission, whichever it may be termed, was as to the plaintiff unauthorized, and should not have been received in evidence. And this is equally true of the declarations imputed to him in reference to the two machines McLean had left on trial at two different houses in Union Springs. If these machines subsequently came to the possesion of Donald, he was without authority to receive them ; and his receiving them being unauthorized could not relieve McLean from liability to answer for them.

2. The relation of Forbes to the plaintiff seems to be essentially different from the relation of McLean. . As he expressed it¡ he was “the.managing agent for the plaintiff, located at Montgomery, Ala.” This is the entire evidence as to the nature and extent of his authority, and it is rather general and indefinite. But when considered in connection with the fact that the plaintiff is a foreign corporation ; with the character of the business in which it was engaged; that McLean was a salesman under the Montgomery office, and the letter of his dissatisfied surety, which induced the inventory or checking up his business, came to the possession of Forbes, we are of opinion he should be regarded as the general agent of the plaintiff, entrusted with the general control, and direction of its business. A stipulation of the contract between the plaintiff and .McLean was, that the plaintiff would pay not exceeding five, dollars per month. for a storehouse in Union Springs'. The evidence-'of Blue, that Forbes agreed to pay five dollars per month of the rent of the storehouse McLean occupied, was properly received. Having the general control and direction of the business of the plaintiff, the agreement was within the scope of his authority.

There is no merit in the contention of the plaintiff, that it was absolved from liability to pay the rent of the storehouse, because of McLean’s neglect to devote his entire time and attention to the business'of the plaintiff. It is not material to consider whether there is such interdependence or mutuality between the promise of the plaintiff and the promise of the defendant, as that the one would be relieved from liability, if the promise of the other was broken. If there is such mutuality, before the plaintiff could be relieved from liability for the rent, there ought to be tangible evidence tending to show an actual breach by McLean of his promise — a breach not merely of its words taken in their strictest literal sense, but in the sense in which they were used by the parties, and of consequent loss or damage to the plaintiff. There is an absence of such evidence, and we perceive no error in the rulings of the court below touching this contention.

For the error pointed out, the judgment must be reversed and the cause remanded.