Montgomery Furniture Co. v. Hardaway

HARALSON, J. — 1. There was no error in overruling the demurrer to the complaint. On the facts stated therein, assumpsit was the proper remedy. Nor was there error in striking out plea No. 5. It was not necessary for the horses to have been delivered to defendants, for them to have become bound to pay for them.— Darnell v. Griffin, 46 Ala. 520; Pilgreen v. The State, 71 Ala. 368; Blackshear v. Burke, 74 Ala. 239. Besides, the defense here intended to be set up, was available under the general issue, already pleaded. The 6th is an improper plea in this form of action ; and the exception reserved to the ruling on the 8th is nob insisted on. 2. It has been held, that a vendor has no right to rescind a sale, when a buyer is in default for the payment of the price ; that when the goods have reached the actual possession of the buyer, the vendor’s sole remedy is by personal action ; that he is in the position of any other creditor., to whom the buyer owes a debt, having no special remedy in his favor as a vendoiv-^-2 Benj. on Sales, §§ 1125, 1156. -In the case at bar, 'the corhplaint alleges, as we have seen, that the „ horses were [114] delivered on the 20th of September, for and on account of defendants (at the stable of Wm. Trimble as is shown) to be paid for on the 1st of October, tobe at the risk of the buyers, but to remain subject to the purchase price, and the evidence of the plaintiffs tended to establish these averments. That of defendants tended to show, that there was no complete agreement of sale, and nothing more than a negotiation looking to one, but that they would take and pay for the horses on the 1st of October. If the evidence of the plaintiffs is to be believed, the defendants were liable' in assumpsit for the purchase price of the horses, and the plaintiffs had the right to re-take and sell the remaining horse for and on their account. — Benj. on Sales, §§ 334, 1125, 1156, 1165. A resale by the plaintiffs under these circumstances— the purchaser continuing in default — did not authorize him to resist paying any balance still due on the pui*chase price. — 2 Benj. on Sales, § 1156 ; Blackburn on Sales, 325. The paper writing of date October 10, 1892, offered in evidence by plaintiffs, among other things it contained, gave notice to defendants that if they did not comply with the terms of their contract of sale, by a certain date, the plaintiffs would have to sell the remaining horse for and on their account. The objection interposed to this document as evidence, was general, specifying no grounds. This objection might have been overruled on that account alone. There were parts of the writing the court might have excluded if specific and proper objection had been interposed ; but, it was certainly competent to the extent that it gave notice to defendants of a purpose of the plaintiffs, after a specified date, to sell the horse on their account, if by that time they did not comply with the terms of said sale. — 2 Benj. on Sales, §§ 1022, 1023; Smith v. Penn, 98 Ala. 560. 3. There was no error in allowing the plaintiffs to prove what was on the sign at defendants’ store in Montgomery ; in allowing plaintiffs’ witness to testify that defendants had purchased a wagon and a pair of horses, since October 1, 1892, and in refusing to exclude this testimony ; in permitting the witness, Miller, to testify that he had made a post mortem exatnination of the dead horse, for which Burks, defendants’ agent, paid him [115] $5.00; and in allowing the witness, Wagner, to testify,, that he sold defendants a double horse wagon and a set of double horse harness, about the 20th September, 1892. The objections raised, in each instance, to the introduction of this evidence, were general, not specifying any grounds of objection, and the evidence, if at all irrelevant, was not patently so. The court was justified in overruling such objections. — Espalla v. Richard & Sons, 94 Ala. 159. 4. The principal of a special agent, is only bound by acts of the agent which are in accordance with his au- ■ thority, and a third party is bound at his peril to ascertain the extent of the agent’s authority. — 3 Brick. Dig. 22, § 54; 1 Amer. & Eng. Encyc. of Law, 252. But, a very important distinction is made, and must always be observed, in the application of this rule, between special and general agents. This court has carefully drawn this distinction. As was said in Wheeler v. McGuire, 86 Ala. 402, and before and since held to the same effect, “A general agent may exceed his express authority and the principal nevertheless be bound. The scope and character of the business, which he is empowered to transact, is, as to third persons, the extent and measure of his authority. * * * * When the general agent transacts the business intrusted to him, within the usual and ordinary scope of such business, he acts within the extent of his authority; the principal is bound, provided the party dealing with the agent acts in good faith, and is not guilty of negligence which proximately contributes to the loss.” The agent’s authority as to third persons, is what it appears to be, and must be determined by the nature of his business and is prima facie coextensive with the requirements. — Louisville Coffin Co. v. Stokes, 78 Ala. 372 ; Gibson v. Snow Hardware Co., 94 Ala. 346 ; Mechem on Agency, §§ 283-287 ; May on Insurance, §§ 126, 143, 144. 5. Of charges asked by defendants and refused, the one numbered 1 asserts an incorrect proposition of law, and under the evidence was calculated to mislead - and confuse, the jury. — Pilgreen.v. The State, 71 Ala. .368. Those numbered 2, 3, 4, 5, 15, 19 were properly re- - fused;- the-2d, 3d, and 5.th, asserting incorrect .principles; -the -4th, argumentative - and - otherwise. ■ illegal and the -15th and 19th,-vague,- argumentative and misleading. [116] No. 11 incorrectly postulates that one dealing with a general agent is bound to know his private instructions from his principal, and is forbidden to act on what appears to be his authority, from the scope, extent and na-' ture of the business he was employed to transact; and, besides, it does not predicate the instruction asked on a violation by the agent of the instructions of his principal. It was properly refused. We find no error in the record, and the procedure of the court below is affirmed.