Cobb v. Malone & Collins

CLOPTON, J. On February 5, 1887, C. D. Crutchfield executed to appellant a mortgage on an unplanted crop. In August thereafter, tbe mortgagor sold a bale of cotton, covered by tbe mortgage, to appellees, who shipped and sold tbe same. Appellant brought this action to recover damages for tbe conversion of tbe cotton by tbe defendants, with notice of bis equitable lien. In answer to tbe action, defendants set up that Crutchfield executed to plaintiff a subsequent mortgage on other personal property, which be agreed to receive in satisfaction of tbe conversion of tbe cotton, and promised to dismiss the present suit. For tbe purpose of establishing this defense, and corroborating tbe oral testimony of Crutchfield, tbe defendants introduced in evidence a letter written by a clerk of tbe plaintiff, in bis name, in which it was stated that Crutchfield bad settled tbe matter, and that be had written to bis attorney to withdraw tbe suit. There was no proof of tbe clerk’s authority to write tbe letter, except as implied from bis employment. Tbe declarations or admissions of a person, acting as agent, must come within the scope of bis authority, in order to affect or bind the principal. To accept a mortgage in satisfaction of tbe employer’s right of action, and to agree to dismiss bis suit, is not within tbe authority of a clerk, as such.—Wailes v. Neal, 65 Ala. 59. Tbe letter was not receivable in evidence, without prima facie proof of authority. Though there may be sufficient evidence to render tbe [574] letter admissible, yet, if the jury, on a consideration of the entire evidence, find against the authority, they should disregard the declarations of the clerk. Notwithstanding this, the charge requested by plaintiff was properly refused. It is predicated on the idea, that authority to write the letter was essential to finding a verdict for defendants. There was other evidence, tending to show that plaintiff accepted and received the second mortgage in full satisfaction of his cause of action, based on a conversion of the cotton. If this be true, it constituted an accord and satisfaction. A release of one is the discharge of all the joint conversioners.—Smith v. Gayle, 58 Ala. 600. But, if the agreement was, as. testified by plaintiff, to dismiss the suit, if Crutchfield would execute the second mortgage, and pay the entire debt due plaintiff in a week or two, this agreement was executory, and not available to defendants as an accord and satisfaction, or release. The second charge requested by plaintiff should have been given. Reversed and remanded.