Crawford v. Barkley , 18 Ala. 270 ( 1850 )

CHILTON, J.

William Barkley, the defendant in error, having purchased from McLemore and Adams an interest of one moiety in certain lands, and holding the title bond of McLemore, in whom was vested the legal title to the same, sold his interest to Geo. Crawford and Andrew Barkley, the plaintiffs in error, as is alleged in the bill, for two thousand dollars; in consideration of which sale, the bill charges, they agreed to pay McLemore what Wm. Barkley still owed for the land, and to pay the residue to him on tire 25th Dec. 1844; that the amount due McLemore, not then being known, it was determined to postpone the execution of a note for the purchase money, until it should be ascertained, and that the complainant transfered the bond he held on McLemore to said Crawford and Andrew Barkley. The complainant then alleges the amount he owed McLemore was $1295 37. which the defendants afterwards paid, and that since that time they have paid him about $100, leaving due him $604 63, besides interest from 25th Dec. 1844. It is further alleged that upon the payment to McLemore of the $1295 37, he executed titles to the entire lands, the defendants having purchased from him and Adams the other moiety. The complainant seeks a sale of the land for the payment of the remaining portion of the purchase money.

A decree pro confesso was taken against Andrew Barkley, sad the defendant Crawford answered the bill, and admitt d lhat the lands were purchased of the complainant by Andrew Barkley on the joint account of said Andrew and himself, but states that he furnished said Andrew with money to make the said purchase, and instructed him to give $3000 for the entire tract, and if it could not be had for that, to return him the money and not to conclude the contract, and that it was agreed, if the purchase could be made, Andrew Barkley was to have one-half the profits which would accrue upon the same. The defendant Crawford insists in his answer that he has more than paid the price which Andrew Barkley was authorised to give for the land? that he was not informed but that in the purchase he had strictly complied with his instructions, and that had he known lhat one dollar more than $3000 had been promised for said land, he would have refused the purchase. The answer admits having obtained title to the lands from McLemore, and insists that at the time he so obtained such title, he only owed? as purchase money to complainant, the sum of $200, alleging that $1500 and not $2000 was the sum agreed to be paid to complainant, and that of this sum he has since paid $100, and that the complainant collected on the books kept of his (defendant’s) mill, the sum of $170, which he converted to his own use. Defendant Crawford further states that Andrew Barkley has relinquished to him all his interest in said lands, and that he is now the sole owner of the same, and has them in possession with complete title thereto; that if Andrew Barkley ever agreed to pay the complainant $2000 for his moiety in said lands, it was without his authority, and a fraud upon him, and that be is not bound to pay more than the sum of $1500, as he understood the contract.

William Williams, a witness examined on the part of the complainant, fully sustains the bill, as to the amount to be paid the complainant. Andrew Barkley was also examined, under an order obtained for that purpose by the complainant, and proves the price to be paid the complainant was $2000. His deposition is objected to, however, on the ground of interest. If Andrew Barkley was the agent of Crawford to conclude the purchase on their joint account, and exceeded his authority in agreeing to give $3500, when he was limited to- $3000, as it is not shown that there was any collusion between him and the complainant to defraud Crawford, or that the said complainant knew that he was exceeding his authority, it is perfectly clear that Crawford must either repudiate his act in totó, or stand by the bargain/ which he has made with the complainant. The established? rule is that the principal cannot of his own mere authority ratify a transaction in part and repudiate it as to the rest; He must either adopt the whole or none. — Story on Agency, 245, § 250, and cases cited in note. If Crawford takes the land under his agent’s purchase, he must pay the price which his agent agreed to give, and look to his agent for indemnity, if he has defrauded him. It appears that in this case he tenders no recision of the contract, but proposes to hold on to the land and to avoid the payment of so much of the price, as his agent was not authorised by him to give. This we have seen he cannot dp. But if the principal should repudiate the act of his agent, the agent himself would be bound by the contract, and the lien of the vendor could be enforced as against him, so that the complainant would be secure in his purchase money in either event.

It is, however, contended that Andrew Barkley is incompetent to testify on the ground of interest. It occurs to us, if this witness’ interest is not balanced, it clearly preponderates against the party who introduces him. He has sold out his interest in the lands sought to be condemned to his co-defendant Crawford, and he has admitted by his default that he and Crawford jointly owed the sum of $604 63, with interest from the 25th Dec. 1844, as a balance due upon the purchase ofit. The bill is to subject the land for the payment of whatever sum may be found ' due, and a reference was awarded to ascertain this sum. Now suppose this witness had proved that only one hundred instead of six hundred dollars were due, is it not clear that the complainant, notwithstanding the decree pro confcsso, could only have had a decree for that sum? We think it is. The witness was then interested in reducing the amount which was a lien on the land to as small a sum as possible. This is unlike the case of a witness confessedly liable for a demand, and upon which he can be held liable in an action to be brought against him, seeking by his own testimony to compel another to share it with him. The decree pro confesso against the witness, who resides out of the State, is but a formal proceeding allowed for the purposes of the trial in this cause, and his co-defendant putting the matter of the complainant’s demand in issue, no decree could be rendered against either defendant upon this bill, in the absence of proof. He is then interested in making such proof as would prevent a decree altogether, or as would reduce the amount as much as may be, and in this view, is interested for his co-defendant, but. not on the side of the complainant who examines him. It may also be a question, whether, as he acted as agent, he is not ex necessitate competent to prove the amount agreed to be paid, and his proof goes no further. The case of Montandon & Co. v. Deas, 14 Ala. 33, is in point to show that he should not be excluded because of his being a party defendant, a decree pro confesso having been rendered against him.

As to the $170, said in the answer to have been collected by the complainant on the mill books, it is very clear the answer is not responsive to the bill, and that being the new matter avered by way of set off, it must be proved. No proof appears to have been adduced concerning it, and it was consequently properly disallowed. We are unable to perceive any error in the chancellor’s decree, and it is consequently affirmed.