Kanjutsky v. Tennessee C. I. & R. R.

ANDERSON, J. The plaintiff did not show a recoverable right under the counts to which demurrers were sustained, and they were therefore properly sustained. —Tabler v. Sheffield Co., 87 Ala. 308, 6 South. 196; same case reported in 79 Ala. 377, 58 Am. Rep. 593; Durr v. State, 59 Ala. 21. The only theory upon which the plaintiff could recover under the common counts is that she bought these labor checks at the instance or request of the defendant, acting through some lawfully authorized agent, or, if upon agreement with some officer or agent not duly authorized to bind the company thereby, that the defendant company subsequently ratified the agreement. — Tabler v. Sheffield Co., 87 Ala. 305, 6 South. 196; Stanley v. Sheffield Co., 83 Ala. 260, 4 South. 34. It is not sufficient that she previously bought checks which were honored by the defendant, but she must have bought them at the instance or request of the defendant, or at the instance or request of one whose act the company subsequently ratified. There was proof that Odom bought checks at the request of the agents or servants of the de [324] fenclant; but the purchase by the plaintiff of the checks in question from Odom did not give her the right to maintain a suit upon the common counts upon the idea that the money-she paid for same was paid at the instance and request of the defendant. The fact that defendant authorized Odom to buy was in no sense a request, express or implied, by the defendant to any one else to buy checks for him. Nor was there averment or proof that Odom transferred or assigned such a claim, if he had one, against the defendant, to the plaintiff. It is insisted that the defendant is estopped from denying plaintiff’s right to recover, because the only reason given for declining to honor these checks was that some had been stolen and that there was no proof that these particular checks had been stolen. We do not understand the doctrine of estoppel to go to the extent of giving the plaintiff a right which did not exist. Suppose the company was estopped from denying the validity of the checks, unless they were stolen; the estoppel would apply only to those entitled thereto, and not to one who was not the payee or legal transferee of same. The estoppel, if one existed, applied only as to the validity of the checks, and not to plaintiff’s title to same. The judgment of the circuit court is affirmed. Tyson, C. J., and Dowdell and McClellan, JJ., concur.