Thomasson v. Benson Hardware Co.

131 So. 563 | Ala. | 1930

Both the original and cross-bills aver that the material was sold or furnished under contract with the owner "or her agent," but do not set out the name of the agent. The demurrer pointed out this fact, and should have been sustained. Murray v. Bessemer Lumber Co., 213 Ala. 232, 104 So. 649.

We have a line of decisions holding that, when a complaint or plea relies upon the act of an agent, the authority of the agent should be averred, Hanover Fire Ins. Co. v. Wood,209 Ala. 380, 96 So. 250, but this seems to be unnecessary in cases of this sort, as it was held in the Murray Case, supra, that the bill of complaint, which did not charge the authority of the agent, was bad only in so far as it failed to set out the name of the agent, and not otherwise. See, also, McGeever v. Harris, 148 Ala. 503, 41 So. 930.

The claims filed substantially complied with the statute. Code 1923, § 8836, McGeever v. Harris, supra.

The decree of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

GARDNER, BOULDIN, and FOSTER, JJ., concur.