Tabler, Crudup & Co. v. Sheffield Land, Iron & Coal Co.

STONE, C. J. This is the second time the present case has been before this court on appeal. When here before, the appeal was prosecuted from the rulings of the lower court upon the pleadings; and this court held, that the plaintiffs, who are appellants in both appeals, could not maintain their action as transferrees of the “labor-tickets.” —Tabler, Crudup & Co. v. Sheffield Land, Iron & Goal Go., 79 Ala. 377. Upon remandment of the cause, the special counts of the complaint, in which plaintiffs claimed a recovery as transferrees of the “labor-tickets,” were abandoned, and issue was joined on the common counts. The right of the plaintiffs to recover in this action can be maintained only upon the theory, that they took up the “labor-tickets” — the basis of the suit — at the instance or request of the defendant corporation, acting through some [309] lawfully authorized agent or agents; or, if upon agreement with some officer or agent not duly authorized to bind the company thereby, that the defendant corporation subsequently ratified the agreement. —Stanley v. S. L., I. & C. Co., 83 Ala. 260. There was much testimony introduced by the plaintiffs, tending to show that they became the purchasers of the said “labor-tickets,” giving in exchange therefor “supplies, and medicines, or money,” under a special arrangement and agreement with the president, who was also general manager, and with a special agent of the defendent, that the corporation would take up the said “labor-tickets,” for their full value, upon presentation by the plaintiffs. There was also evidence on the part of the plaintiffs, tending to show that upon presentation of a number of such tickets, the defendant paid the plaintiffs the full amount represented by them. There was no conflict in this evidence. One witness for plaintiff, however, testified that “on the day he made such payment to plaintiffs, he told one J. T. Cooper, a book-keeper and clerk of plaintiffs, that no more of said tickets would be paid by defendant, except to the laborers themselves;” while Duncan, one of the plaintiffs, testified that on the day of the payment he was present, and “heard no such conversation” as that testified to by the witness. This constitutes a conflict in the testimony, which will not authorize the general charge. To support the general charge, the evidence must be so clear and convincing as that the court could rightly sustain a demurrer to the evidence of the opposite party. If the evidence be in conflict, or if it be circumstantial, or if a material .fact in the case rests in inference, the general charge should not be given. The Circuit Court erred in giving the charge requested by the defendant. —Ala. Gold Life Ins. Co. v. Mobile Mut. Ins. Co., 81 Ala. 329; Seals v. Edmondson, 73 Ala. 295; S. & N. Ala. R. R. Co. v. Small, 70 Ala. 499; Smoot v. M. & M. Railway Co., 67 Ala. 13. There was no error in the court excluding that part of the testimony of the witness Duncan relating to an alleged conversation had between him and one Walter Gordon, who was at the time president and general manager of the defendant corporation, but was shown to be deceased when the trial was had. It was evidence of one interested in the result of the suit, and related to an agreement or conversation alleged to have been engaged in by one who, at the time, occupied a [310] fiduciary relation to the defendant. The statute is very plain in this respect; and the adjudications thereon render further comment unnecessary, to give a clearer understanding of its meaning. — Code, 1886, § 2765, and citations; Miller v. Cannon, 84 Ala. 59; Stanley v. S. L., I. & Co., 83 Ala. 260; Warten v. Strane, 82 Ala. 311. The payment, testified to have been made by the defendant to the plaintiffs on the 20th of May, 1884, was after the alleged agreement entered into with plaintiffs. If, after said agreement, the defendant made such payment, with a full knowledge of all the facts and circumstances, it thereby ratified said agreement, and bound itself to meet all obligations arising therefrom. If the “labor-tickets” had once been paid without objection or disapproval by the corporation, the plaintiffs were justified in indulging the presumption, that all other tickets purchased by them would be also paid. Such ratification would bind the defendant corporation to pay the tickets bought by plaintiffs, until they were notified that no more of the tickets would be paid “except to the employees themselves.” By such payment, the defendant recognized and ratified the authority of its agent to bind it by the agreement with plaintiffs; and until notice was brought home to the plaintiffs that no more of the tickets would, be paid by them, the obligation to pay would still rest with the defendant, and is sufficient to maintain an action against the corporation. The principle is the same as when a father, without objection, pays an account contracted by his minor son; the payment is equivalent to a recognition by the father of the son’s authority to bind him, and will render him liable on a similar account subsequently contracted. — 2 Greenl. Ev. (14th Ed), 65-66; Story on Agency, § 56; 1 Pars, on Contr., §§ 50-51; Ewell’s Evans on Agency, p. 66; 2 Waterman on Law of Corp., 370; 2 Morawetz on Corp., §§ 604, 630-632; Taylor v. A. & M. Asso., 68 Ala. 229; Talladega Ins. Co. v. Landers, 43 Ala. 136; Stone v. Britton, 22 Ala. 542; McKenzie v. Stevens, 19 Ala. 691; Whitney Arms Co. v. Barlow, 63 N. Y. 62; Railway Co. v. McCarthy, 96 U. S. 258; Hurd v. Green, 17 Hun, 327; Howe v. Keeler, 57 Conn. 538. The judgment is reversed, and the cause remanded. Clopton, J., not sitting.