Shrimpton v. Brice

COLEMAN, J. The appellants sued in assumpsit to [665] recover the value of a quantity of pins claimed to have been sold and delivered to the defendants, who were merchants doing business at Murphree’s Valley, Ala. The complaint counts in the common form for goods, wares and merchandise sold and delivered, and also upon a stated account. The trial was had upon a plea of the general issue. The account introduced by plaintiff showed an indebtedness for “4 great gross and 135-)- papers pins, at 3£ cents per paper. $320.10.” The evidence showed that a Mr. Bynum was a clerk for the defendants, and that Attalla was the depot at which defendants received their goods, and the place to which the pins were shipped. The defendant Brice, being on the stand as a witness for himself, was permitted to testify that he “told Mr. Bynum to order five great gross of pins.” An order for five great gross papers of pins was shown him signed Brice & Donehoo, and he testified that he “did not recollect that he saw the order or directed Mr. Bynum to sign the order shown him.” We are of opinion the court erred in permitting the question and answer. What was stated to Mr. Bynum was mere hearsay. Such evdence was calculated to impress the jury that it was corroborative evidence. The court erred in permitting the defendants to introduce in evidence a note written by the defendants to the agent at Attalla, in regard to the pins; also in admitting evidence “as to how many pins the firm of Brice & Donehoo usually sold in a year,” and “as to their financial rating, and annual business,” and whether the “amount of pins alleged to have been purchased was a reasonable purchase for their trade.” The issue in this case was whether they purchased the pins or not, and this issue could not be properly determined by the consideration of questions affecting the policy or wisdom of the purchase, or the financial rating of the defendants, or the amount of goods suitable for the trade of the defendants. What is here said applies also to the action of the court in overruling objections to cross-interrogatories propounded by defendant to the witnesses A. A. Wright and D. E. Wright, the object of which was to elicit similar testimony. The objections were well taken, and should have been sustained. The court did not err in excluding the answer to the plaintiff’s 11th direct interrogatory to A. A. Wright. [666] Whether the special advertising of defendants’ name and place ef business placed upon the papers of pins, rendered them unsalable to other merchants, shed no light upon the issue before the jury. There was no error in excluding that part of the answer of the witness I). E. Wright to the 5th interrogatory to which an exception was reserved. The court did not err in receiving the testimony of the witness Donehoo, “that in his judgment the signature to the order was not in the handwriting of either Brice or Bynum.” Neither of the counts of the complaint counts upon the order for the pins as the foundation of the suit, as provided in section 2770 of the Code. It was admissible in evidence collaterally to sustain the cause of action as laid. When thus offered in evidence, the genuineness of the instrument may be disputed without a sworn plea. — Garrett v. Garrett, 64 Ala. 263. Under the evidence of the witness Wright, the production of the envelope, in which he testified the order was received, with its post mark at Murphree’s Valley, the admission of Bynum that the address was in his handwriting, the order itself, in connection with the evidence of Donehoo, that the red-lines “resembled Brice’s handwriting”, and other circumstances, were matters for the consideration of the jury in determining the genuineness of the order. We can not say the court abused its discretion in limiting counsel to thirty minutes on each side for argument; but we suggest that, in the exercise of the use of its discretionary power in this respect, it is the better practice to allow ample time for a full discussion of the facts of the case. The court erred in that part of the oral charge to which an exception was reserved. If the defendants in fact ordered five great gross papers of pins through a mistake on their part as to how many pins were included in the order, such a mistake can not be visited upon the plaintiff who filled the order as written. Excluding the illegal evidence admitted, and there is not a scintilla of proof tending to show that plaintiff had any notice or knowledge that there was any mistake in the order. Under the evidence in this case charges Nos. 2 and 8, requested by plaintiff, should have been given. Charge 3 was properly refused. The suit was not upon the [667] order. The burden rested upon the plaintiff to prove it was genuine. The fourth charge omits the predicate if the ‘ ‘order was made by the defendants, or their agent.” This was a prerequisite to plaintiff’s right to recover and was a disputed fact. The principle of law asserted and intended to be asserted in charges 5, 6 and 7, will be considered together. The general rule is, that a person dealing with an agent does so at his peril, and is bound to know the extent of the agent’s authority, but this rule is not construed to relieve a principal from liability for an act of his agent, acting within the scope of his authority, even though the act done be against instructions of which third parties had no notice ; nor can secret instructions affect the right of third parties dealing in good faith with an agent.— 1 Amer. & Eng. Encyc. of Law, p. 350; Piedmont & Arlington Life Ins. Co. v. Young, 58 Ala 476; Whilden & Sons v. Merchants & Planters’ Bank, 64 Ala. 1, 33; Ala. Gr. So. R. R. Co. v. Hill, 76 Ala. 303; Montgomery Brewing Co. v. Caffee, 93 Ala. 132. We are of opinion the facts of the case and the testimony of the parties call for the application of different principles from those which apply when a party knowingly deals with an agent. The evidence shows that the transaction began by the plaintiffs sending out from New York a printed circular to defendants, which was received by them, containing blank orders for pins, and a space for the insertion of such advertisments as the purchaser might desire to be placed upon the papers of pins purchased. This printed circular began as follows : “Please put up for us..........great gross papers of pins, 360 pins in a paper, with our advertisement printed at the head of each paper and between the rows,” &c.. The only blank in the printed order, to be filled by the purchaser was for the number of “great gross papers of pins,” and such advertisement as was desired by the purchaser. The blank in the present case was filled with the figure “5.” It is not denied that plaintiff authorized their clerk to make out an order on one of these printed forms, and that the order was for “5.” Their contention is that they instructed their clerk to make the order for “5 great gross of pins,” instead of five great gross papers of pins. The order was not signed [668] Brice & Donehoo, by Bynum, or otherwise, to indicate that it was the act of an agent, but it was signed “Brice & Donehoo.” There is no evidence in the record, that plaintiff had any notice that it was dealing with an agent, or knew that defendants had a clerk or agent connected with their business. The only evidence on this point is, that plaintiff mailed to “Brice & Donehoo” a printed form for an order for the pins, and the printed form came back, filled out to their address, from Murphree’s Valley, signed “Brice & Donehoo.” It is not pretended by defendants that their clerk Bynum did not have authority to sign the firm name in the manner it was signed to the order, neither was there objection to the order on the ground that it was signed “Brice & Donehoo.” We think it sound in law and morals, that if the defendants authorized the clerk to sign the name of “Brice & Donehoo” to the order, so that it would purport to have been signed by a member of the firm, and not by an agent, the firm is bound to to the same extent, as if in fact it had been signed by the firm. Under this principle, if the order was signed by the firm, or by an agent of the firm, with authority to sign it, and there was a mistake in the quantity of pins ordered, the plaintiffs not being advised of such mistake, the consequences must fall upon the defendants and not upon the plaintiffs. This is the principle of law, which should govern under this phase of the evidence. For the errors noted the case must be reversed. Reversed and remanded.