Western Newspaper Union v. Judson, 55 So. 1026

55 So. 1026 | Ala. Ct. App. | 1911

WALKER, P. J.

It is not a ground of reversal that the trial court, on an objection made by the defendant, refused to allow the plaintiff to amend the count of its complaint on account by adding at the end thereof the averment “that this count of this suit is brought on a verified account.” The addition of that statement would not have served the purpose of making a verified itemized statement of the account competent evidence of the correctness of the account, as, under the provisions of section 3970 of the Code of 1907, that result follows only when the plaintiff, at the time of bringing his suit, indorses on the summons or complaint, or other original process, the fact that the account is verified by affidavit. If that statement had been embodied in that count of the complaint at the time of bringing the suit, it would have been taken merely as a compliance with the statute, and not as descriptive of the cause of action.—Sullivan Timber Co. v. Brushegal, 111 Ala. 114, 20 South. 498.

The trial court cannot be put in err,or for a refusal to permit such an addition to a complaint to be made by amendment, as it did not amount to an addition to the statement of the cause of action, which, under section 5367 of the Code, must be allowed to be made by amendment, and was not in any aspect such an amendment of the complaint as that section of the Code requires to be permitted when moved for by the plaintiff.

The ground supporting the plaintiff’s motion to strike the defendant’s plea of non est factum because it was not sworn to was removed when the defendant under leave of the court amended that plea by swearing to it. Ther,e was no error in the action of the trial court in that regard.

The appellee (defendant below) was named in the caption of the complaint as “W. H. H. Judson, doing business as the Bessemer Evening Review.” After evidence had been received which tended to show that the defendant had been the sole owner of the Bessemer Evening Review, a daily paper formerly published in Bessemer, that one T. Jeff Bailey, Jr., was employed by him as the manager of the business, and was authorized to buy supplies needed to run the business and get out the paper, to make accounts, and pledge the credit of the Bessemer, Evening Review, and as his manager to sign a note to the appellant for $124.55, the amount due to the appellant on an account contracted by Bailey in the name of the newspaper pursuant to his authority as manager, the plaintiff offered in evidence a note to itself for that amount signed by “Bessemer Evening Review, by T. Jeff Bailey, Jr., Manager.” The defendant objected to the introduction of this note on the ground that it had not been shown that it was signed by any one authorized to bind the defendant. The plaintiff excepted to the action of the court "in sustaining this objection. The assignment of er,ror based upon that exception must be sustained, as at the time the objection was made there was evidence before the court tending to show that the note offered in evidence was signed by one authorized to bind the defendant.

For a like reason, it must be said that the court below erred in excluding* the itemized statement of account offered in evidence by the plaintiff after evidence had been received tending to show that the defendant authorized the making* of the account in his behalf, and that the offered itemized statement of it was correct. The evidence as to the authority of Bailey to bind the defendant by making the account or giving the note in settlement of it was in sharp conflict. Whether or not he was so authorized by the defendant was a question for the jury.

Even if there had been evidence tending to show that Bailey was an agent of the defendant when he wrote the letter to a representative of the plaintiff, the exclu sion of that letter would have been proper under the rule declaring it to he beyond the scope of an agent’s authority to bind his principal by admissions and declarations having reference to by-gone transactions.—Stanton v. Baird Lumber Co., 132 Ala. 635, 32 South. 299. It is all the more plain that an ex-agent is without power, so to hind his former employer.

Other questions presented need not he considered, as they are not likely to arise on another trial.

Reversed and remanded.