82 So. 188 | Ala. | 1919
The third count was in detinue on which there was recovery of specific chattels.
The first assignment of error is on the overruling of defendant's objection to the following question to the witness Coffin: "I wish you would state whether or not in that conversation between Mr. Wood and Mr. McMahon in reference to the sale of this car Mr. Wood represented this electric would run eighty miles on a charge" — to which this reply was made: "Yes, sir; he made that statement." The ground of objection was that the reply thereto would be irrelevant, immaterial, incompetent, and misleading evidence. This objection is, however, rested on the insistence of defendant that any statement Wood might have made in "conversation with disinterested parties would be immaterial to the question of fraud" in the sale of the electric car by defendant's agent; and in support of the position is cited Bunzel v. Maas Schwarz,
"The plaintiff was not present, and the direct assertion or admission by Marks of having an interest in the notes could not affect the plaintiff whose rights were then fixed."
In Robinson v. Garth, supra, the action was by the sheriff to recover the difference between the sum bid by defendant for tracts of land sold under execution and the price for which said lands were subsequently sold on defendant's refusal to complete the first purchase. Held, that the memorandum of the original sale made by plaintiff as sheriff is not competent evidence to establish the fact that such sale was made by that official. These cases are not applicable to the instant facts.
Defendant's manager admitted that he had placed the electric car with Wood for sale by him as agent on a commission basis. Plaintiff's evidence tended to show that about a week before the car was demonstrated to her said Wood approached Otis McMahon (her son) in the presence of Coffin, and in the ensuing conversation about the sale of the car represented that it would make 80 miles on a single charge of its electric battery; that on that day McMahon had a conversation with the manager of defendant company (Kearns) in the course of which McMahon stated, "Wood said that car will go eighty miles on a charge," and Kearns replied, "Wood knows what he is talking about; he is the electric man," and further said that he (Kearns) did not know anything about electrics. Witness McMahon testified that he knew Kearns was at the time the manager in charge of the defendant company; and witness repeated to his mother what Kearns said of Wood's representation. This first approach of Wood to witness about the car in Coffin's presence was about a week prior to the time the former brought the car to plaintiff's house and demonstrated it to plaintiff and her son.
While there was evidence tending to show that Otis McMahon was not the agent of his mother in the consummation of the purchase, yet it was through him that negotiations were initiated and proceeded, and he was constantly with his mother during such negotiations, advising with reference thereto, to the time of the purchase and delivery of the car. Of this fact Wood testified, "I had a transaction with them (meaning Mrs. McMahon and Otis McMahon) relative to the sale of an Ohio Electric," the car in question, that Otis McMahon was constantly conferring with his mother in reference to the terms of the sale, and that "I was selling the automobile to both of them, I supposed." A reasonable inference that may be drawn from this and other evidence, showing that the car was placed by defendant with Wood for sale, was that the representations thereof made by Wood to Otis McMahon in the presence of Coffin, in the preliminary stage of the negotiations, were in pursuance of Wood's agency and authority to sell the car. When the conversation of Wood with Otis McMahon, in the presence of Coffin, was repeated to the manager of defendant company, that official affirmed the fact that Wood knew what he was talking about, disclaimed knowledge on his part of the mechanism of electric automobiles, and made no denial that the car in question would stand such represented or guaranteed test. When this testimony is taken in connection with the *160
representation of Wood to Otis McMahon, in Coffin's presence, and its repetition to plaintiff, the same became relevant and was competent as tending to show authority in Wood to make the representations that were material inducements to the purchase, and one of the controverted issues upon the count in detinue. It tended, further, to show a ratification of the statement by the manager for the corporation, though the statement was not originally made in the presence of that official or of the plaintiff, but that such agent was held out by defendant company for the purpose of selling the car. Home Protection, etc., v. Whidden,
The testimony was competent as tending to show a fraudulent intent on the part of the agent in making the misrepresentation to induce the sale. Great latitude is allowed in the range of evidence when questions of fraud are involved, and is indispensable to truth and justice. Nelms v. Steiner Bros.,
The fact that testimony making relevant the evidence to which objection was interposed was introduced later in the trial does not render the evidence in question irrelevant when considered in connection with such subsequent testimony. If the same had been irrelevant at the time of its introduction, which we have shown not to have been, the error of its omission would have been cured by the subsequent testimony making it relevant and competent. In McCoy v. Watson,
"If evidence prima facie irrelevant becomes relevant at any stage of the cause, its admission is not an error which will work a reversal, although when offered and received it was irrelevant. 1 Brick. Dig. 780, § 106."
To like effect were the holdings in Belmont Coal Railroad Co. v. Smith,
It is unnecessary, yet not improper, to say further of this evidence that later in the trial Otis McMahon was permitted to testify to the same representations without objection.
In the oral charge certain statements of law applicable to the facts were given the jury and to which exception was reserved. When the exception was taken in the first and second instances, the court modified the original statement to which exception was reserved, resulting in the final instruction that —
"The burden is on the plaintiff to make out every material allegation of the complaint, and that is that this agent was acting within the scope of his employment, made a false representation of a material fact, that plaintiff relied on that false representation and made this purchase. Whether or not he was acting within the line and scope of his authority, and whether or not he made any such representation, if he made it, and whether or not it was false, it is a question for your determination from all of the evidence and circumstances in this case, and it is for you to say from all the evidence in this case, whether Wood made any representation, and, if he did, whether or not he had any authority to make it, if he did make it and did have authority, and whether the plaintiff relied *161 on that representation in purchasing the automobile."
The last and modified instruction was more favorable to defendant that it was warranted in requesting. In Kramer v. Compton,
"A principal is liable for the acts of his agent, done within the scope of his apparent authority."
The court held that the charge asserted a correct principle of law, and, if misleading, an explanatory charge could have been given. St. L. S. F. R. R. Co. v. Hall,
The detinue count was properly submitted to the jury, under the evidence, and verdict was returned thereon for the specific chattels sued for and the respective values thereof. Gwin v. Emerald Co.,
The evidence showed without contradiction that the electric car was not in exact condition when the rescission of the sale was made and return thereof attempted as when received by Mrs. McMahon; that some slight injury to the "fender and the front of the guard" had been caused by a collision for which plaintiff was in no wise responsible. Of this plaintiff as a witness testified that the damage was slight and had been repaired at her expense. The offer to rescind and return chattels must be made within a reasonable time, and the circumstances must not have been so altered by a past execution or changed condition that the parties cannot be put in statu quo; that is, must rescind in toto, if at all. Lowe Armstrong v. Shinault,
"The bill avers that the detention of the machine and the failure to at once offer to rescind was superinduced by an effort on the part of the respondents to demonstrate that the machine would accomplish the work as represented, and it was given an opportunity to repair or regulate the same, and, after repeated efforts on its part to make it do the requisite work, it was demonstrated that it could not, and the complainant then and there offered to rescind and demanded a restoration of the status quo."
See, also, on this point, Fuller v. Chenault,
As to restoring the status quo, as nearly as could be done, by reason of the slight damage forthwith repaired by plaintiff (Consumers' Coal Co. v. Yarbrough, supra, and authorities), that damage so done without the fault of the plaintiff was repaired by her, and was not such as to prevent rescission. Magee v. Billingsley,
The affirmative charge requested by defendant as to recovery under the detinue count was properly refused.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.