Mobile & Montgomery Railway Co. v. Jay

STONE, J. There is a class of cases in which a single act in recognition of agency, will bind the principal for contracts afterwards made by such supposed or assumed agent; as, “ when a father pays, without objection, an account contracted by his minor son while attending school at a distance from home, the payment is equivalent to a recognition of the son’s authority to bind him, and will render him liable on a similar account subsequently contracted.” — McKenzie v. Stevens, 19 Ala. 691. This rests on the principle that the act of the agent is thus distinctly ratified and admitted; and, there being no warning, caution or notice given to the person thus dealing with the agent, the law treats this as an authority for further dealings with such agent. But the principle extends only to the person, whose prior dealings with the agent have been, in this manner, ratified. Payment to A of an unauthorized account, is no license or authority for similar credit extended by B. The principal may be willing that the agent, actual or assumed, may bind him to A; and payment to A, without objection or notice, is evidence of such willingness. It is not evidence of a willingness to become bound to B. There is no evidence in the present record that the railway company had ever paid a charge, contracted as this was, to Dr. Jay, the plaintiff in this suit. Hence this case does not fall within the principle above stated, and we do not understand counsel as contending that it does. It is contended for appellee, however, that it was the usage or custom of the Mobile and Montgomery Railway Company to pay for medical services rendered as the proof tends to show these were, and that, therefore, the plaintiff below was entitled to recover in this action. When a custom or usage of trade, such as is here contended for, is proved to exist, and to be general, all persons engaged in such trade or pursuit, are presumed to contract in reference to it, and it thus becomes a part of their contract, unless there is express provision in the contract which repels the inference. But a mere act or habit of a trader is not necessarily enough to establish such custom. To become a usage or custom of trade, and thus to make such custom a part of the law of the case, it must be shown to have been so generally known, so well [250] settled, as to raise the presumption that the parties contracted in reference to it. — Mobile Marine Dock and Mutual Ins. Co. v. McMillan & Sons, 27 Ala. 77; Barlow v. Lambert, 28 Ala. 704; Fulton Ins. Co. v. Miller, 23 Ala. 420; Ala. & Tenn. R. R. Co. v. Kidd, 29 Ala. 221; Austill v. Crawford, 7 Ala. 335; West v. Ball, 12 Ala. 513. In the present case the proof of usage was by no means clear or conclusive. Plaintiff testified the superintendent of the railway company told bim, after the services were rendered, “that it had been the custom of the defendant’s company to pay for services rendered by physicians to employees who had been injured by defendant’s cars;” but he gave a reason why the company would not pay the present demand. Corry, a witness for defendant, testified that he was, and for several years had been supervisor of defendant’s railroad — and that as such supervisor he did not consider he had authority to contract with physicians for medical services rendered to hands of the road. He had known of but one instance in which defendant had paid a similar bill, and that was a case of a hand who had been injured by defendant’s cars, and witness had employed a physician to attend him, and told the physician that he, witness, would be personally responsible for his compensation, and would himself pay him, if the company did not; that the bill was only twenty dollars, and the company voluntarily paid it. Plaintiff in this case testified that a former supervisor of defendant’s road had employed him to render the services, for which the present suit was brought, and had told him the company would pay him for such services. It is doubtful if this testimony tends to prove a usage or custom of trade, which enters as an element into contracts supposed to be made in reference to it. The most that could be made of such testimony, in this connection, would be, to submit it to the jury for their inquiry, whether such custom existed, and was so general and known, as to raise the presumption that these parties contracted in reference to it.— Steele v. McTyer, 31 Ala. 667. The court erred in the charge to the jury, that “ if they believe from the evidence that previous and up to the rendition of the services of plaintiff, for which suit was brought, it had been the custom of defendant to pay bills for medical services rendered by physicians to employees of defendant, who had been injured by defendant’s cars, then they were liable to the plaintiff in this suit for the reasonable value of the services rendered by plaintiff to Green Richardson, if he was injured by defendant’s cars [251] •while in its employ.” The testimony fails to make a case that falls within either of the principles stated above. The real question in this case is, had O’Brien authority to employ Dr. Jay, and thus bind the railway company ? On this point, the testimony of the several witnesses should be weighed by the jury, under appropriate instructions. — McClung v. Spotswood, 19 Ala. 165; Bank of Montgomery v. Plannett, 37 Ala. 222. Of course, if O’Brien had authority to bind the corporation, either express or implied, and did employ plaintiff, as claimed by him, the company could not afterwards absolve itself from the liability, by reason of the suit for damages brought by Richardson. Reversed and remanded.