Chas. E. Morris & Co. v. Bynum Bros.

SAYRE, J. Plaintiffs brought this action to recover a sum alleged to be due from defendants for goods, clothing, sold by plaintiffs to defendants. There was a plea of re-coupment, and on this plea defendants recovered a judgment over against plaintiff's; the cause being tried by the court without a jury. Plaintiffs appeal. The plea, alleging payment in large part for the goods' in question, counted on the breach of a contract by which T. L. Harlan, “as agent for plaintiffs,” whfen making the sale of the goods to defendants, agreed *542 that, if defendants could not sell certain items thereof, plaintiffs would “take said clothes off the hands of defendants at the sale price.” The demurrer to this plea, that it failed to allege that said agent, in making the agreement counted on, was acting within the scope of his authority, was correctly overruled. The better form of allegation would have been that the contract counted on was entered into by plaintiffs through their agent duly authorized by them in that behalf (Childers v. Emory, 8 Wheat. 642, 5 L. Ed. 705); but the allegation adopted is substantially that approved in Western Union v. Garthright, 151 Ala. 413, 44 South. 212, and Childress v. Miller, 4 Ala. 447, and is tolerable (2 Cyc. 904). The demurrer to plaintiffs’ replication was properly sustained. The fact that plaintiffs indorsed on the invoice a statement of the coátraet different from that set up in the plea, if brought to the attention of defendants at the time of the receipt of the goods, would tend to prove the contract to be different from that alleged in the plea, but did not of itself suffice to deny that contract, change its terms, or estop defendants to allege a contract in the terms of the plea. Defendants’ witness O. D. Bynum testified that the contract between the parties was not reduced to writing, and, of course, it was competent for him on his theory of the facts to state its terms without producing a memorandum made at the time by plaintiffs’ agent, notwithstanding the agent’s testimony admitted of an inference to the contrary. In this state of the evidence, the question whether the contract was in writing or parol, and its terms, was a question of fact, for jury decision ordinarily; in this case a question to be determined by the court. But judgment should not have been rendered for defendants on the evidence in the cause. Harlan, the agent through whom the sale was negotiated, does not appear to have had any authority other than such as traveling salesmen generally have. The fact, if a fact, that he assumed to act in making the sale upon some such authority, did not suffice to prove his authority against the denial of plaintiffs. As a witness he denied the contract alleged in the plea. There was no proof of it. That was quite an unusual contract, if made. “The implied power of an agent to warrant title and guaranty rests upon the necessity and propriety of such warranties in the sale of goods. It is not therefore to be extended to other warranties of an-unusual sort, however impossible the agent may find it to make a sale without giving such warranties.” 2 G. J. 605. Reversed and remanded. 'ANDERSON, O. J., and GARDNER and MILLER, JJ., concur.