Bank of Montgomery v. Plannett's Adm'r

STONE, J. The'doctrine is settled in this State, “ that books of accounts, kept by a deceased clerk, and all other entries or memoranda made in the course of business or duty, by any one who would at the time have been a competent witness to the fact whieh he registers, are admissible evidence.” — Batre v. Simpson, 1 Ala. 305; Everly v. Bradford, ib. 371; Clemens v. Patton, Donegan & Co., 9 Por. 289. This evidence is received on what is considered the moral necessity of the case. — Phil. Ev. (Cow. & Hill's Notes, by Van Cott,) 1 pt. 305, et seq. ; 1 Greenl Ev. §§ 115, 120. This doctrine resting on the presumed-necessity of the case, it follows that; when-<the reason ceases, tire rule also fails; cessante rations, cessat ipsa lex. — Cow. & H. Notes, 1st pt. 310.' Hence, .wliemgoods were delivered on written orders, it was ruled*by the supreme court'of Pennsylvania,. (Ch. J. Tilghmaniddlivering the opinion of the court,) that the books were not evidence. — Smith v. Lane, 12 S. & R. 80. To the same effect are the cases of Tenbroke v. Chapman, 1 Coxe, (N. J.) 288; Townley v. Wooley, ib. 377. See Cow. & H. Notes, 1 pt. 310. In this case, it is shown that the custom of the bank was, to pay out moneys on the checks of its depositors, and*' not otherwise. This removes the necessity under which the books would be evidence, and, of course, 'renders the rule inapplicable. The circuit court did not err in excluding the books from the jury. [227] ['2.] Tlie record shows that the notes of Mr. Plannett 'were not presented to the administrator within eighteen months after they' accrued, nor within eighteen months after the grant of letters of administration.- — Code, § 18S3. It? is not essential to the operation of the bar, that the administrator should have given notice under the statute, (Code, $1734,) although his failure to do so is obviously a breach of duty on his part. — See Cawthorn v. Weisinger, 6 Ala. 714; McHenry v. Wells, 28 Ala. 451. The court did not err, in charging the jury that the notes of Mr. Plan-nett; offered in defense, were- barred-as a- set-off by non-claim. [3.] In charging .“ that the-evidenee wás nofrsuffieient to-show that Carnot had authority to draw said checks, or any of them, in behalf of the plaintiff’s intestate,'” the circuit court erred. In the case of McClung v. Spotswood, (19 Ala. 165,) this court, Ch. J. Dargan delivering the-opinion, said : “ But in most cases, if not in all, the ques--tion of agency is -a matter of fact, which it is the province - of the jury to determine upon, under the instructions of -, the court; and if the testimony tends to prove, that* the - person acting as agent had authority from his principal to * do the act, then it is manifest-that the court cannot-exelude from the jury the act itself, -without over-stepping:the law of its duty, and assuming to determine a matter which belongs to the jury, to-wit, the authority of the agent to do the act.” In the case from which we have quoted, the fact of agency was left by the testimony in extreme doubt; yet this court ruled, that the circuit court erred in excluding the evidence from the jury. In the case of McDonnell v. Br. Bank at Montgomery, (20 Ala. 313,) a similar decision -.was pronounced on 'testimony.'of agency which was inconclusive.— Roland v. Logan, 18 Ala. 307; Krebs v. O’Grady, 23 Ala. 726; King v. Pope, 28 Ala. 601; Fisher v. Campbell, 9 Por. 210 ; Strawbridge v. Spann, 8 Ala. 821; Barry v. Foyles, 1 Pet. S. C. 311. In the case of Irwin v. Buckaloe, (12 Serg. & R. 35,) the question was, whether one Moore was the agent of the [228] defendant. The only evidence of agcuqy was that of one witness, who testified, that “ he :had done business with Moore, as the agent of defendant, one or two years after the date of the receipt; and that the defendant, about the same time, had told him that Moore was his agent, and did business for him".” Gibson, J„ in delivering the opinion of the court, said, “ The admission was a circumstance to be left to the jury, with a direction to regard the receipt as competent evidence or dtherwise, as they should be satisfied, or not, of the existence of the agency when the receipt was signed.” These authorities are full to the point, that the evidence in this case ought to have gone to the jury, under an appropriate charge, for that body to have passed on the question Of Carnot’s agency. As to the two checks drawn for the payment of the two notes of Mr. Plannett, and which, as the record'informs us, “purported on iheir face, to be drawn for the payment of said notes f we do not perceive on what principle they were excluded from the jury. These notes were given for the rent of the billiard-tables, and Mr. Plan-nett was absent from the State when they matured. The proof is quite full, that Mr. Carnot was the agent of Mr. Plannett in the control of the billiard-room. These were facts clearly for the consideration of the jury, on the question of payment of the notes by those two checks. "So, forming our opinion on the evidence recited in the record, we think the whole of the checks and orders should ..have been left'before the jury, in connection with the other evidence oirthe question of agency, for decision by thatlfedy. If, under proper instructions, they .found -that .'Mr. Carnot was the agent of Mr. Plannett t0<6Qntrol'.his.iunds in bank, and that on’his checks, as such ageútpth'e deposit had ¿been drawn from the bank, this would amount’to a good defense to this action'under the plea óf payment. We need scarcely add, that the doctrine;of mon-claim liras no application to payments. Eeversed andiremanded.