McDonnell v. Branch Bank at Montgomery , 20 Ala. 313 ( 1852 )

CHILTON, J.

The charge prayed for by the counsel for the defendant below, respecting the sufficiency of the proof to establish the fact of McNab’s authority, was properly refused' by the court, as it would have amounted to an obvious invasion of the province of the jury. It was for the jury, and not the presiding judge, to decide upon the weight of the testimony, and to determine whether the proof, that McNab acted as the general deputy of McDonnell, when he made the memorandum of the collection of this money, and that he occasionally acted in that capacity until 1844, considered in connection with the nature of such acts, as involving public duties, the custody of the public records of the county, and as continuing for such a length of time, was not sufficient to justify the inference that he was employed by McDonnell, or if not specially employed, that his acts were appi’oved and ratified by him.

It is true, as a general rule, that the agency of a party must be proved by other evidence than his mere acts, before it can be properly assumed that such acts are binding on his principal. Scarborough v. Reynolds, 12 Ala. Rep. 259. But if the agent is discharging the duties of a public trust, of an office conferred upon another, as his deputy, and his acts are of such a continuous character as reasonably to justify the inference that the principal, if a faithful- public officer, must have known of them, and would not have permitted him thus to act in the absence of authority for so doing; in such case the acts themselves from their nature, coupled with the relative situation of the parties with regard to them, become very strong evidence of the authority of the agent to perform them.

2. Yet the fact of authority is an inference to be drawn by the jury, and while the court below very properly refused to instruct them that the evidence was insufficient to establish it, on the other hand it erred in charging that, if they believed the proof, the agency was established. However strongly the proof may have tended to establish such inference, still it is an inference of fact from the other proof, which the jury very properly might draw, but which the court, as matter of law, could not assume.

3. We are also of opinion, that the court below committed an error, in refusing to give the charge asked, respecting the application of the payment made to the representative of the attorney of record. We say nothing as to the sufficiency of this proof, to warrant the inference of a payment of this demand ; for, if it tended to establish this hypothesis, it was sufficient as a predicate for a charge to the jury.

The general rule respecting the application of payments is, that where they are made by a debtor to a creditor, the debtor has the right to direct their application. If he fails to give such direction, then the creditor may apply the payment; but if only one demand is proved to exist, and a payment is made without any direction, the law applies it to the payment of this demand. The court then might well have instructed the jury, that if the clerk made a payment to the attorney who recovered the judgment, after such judgment had been collected by him, they should regard it as a payment on the demand so collected, in the absence of any presumption of an application of it otherwise. Whether, inasmuch as no particular amount is proved to have been paid, the jury would be justified in allowing more than a nominal credit, is a question which we do not now decide.

4. As to the statute of limitation, it is clear that it did not commence running until the cause of action accrued; and no cause .of action would exist against the clerk who had collected the money, until he was guilty of some default with respect to it. If it had been shown he had converted the fund, this would have subjected him to an action, and dispensed with a demand. The statute in such case would begin to run from the time of such conversion. Or, if no conversion had been shown, but a refusal to pay on demand, then the statute dates its commencement from the demand, as until then, the clerk would be in no default, and no action could have been maintained against him. Barton v. Pecks, 1 S. & P. Rep. 486; Sally’s Adm’r v. Capps, 1 Ala. Rep. 121; McBroom v. The Governor, 6 Por. 32. The case last cited held,' that such special demand must be averred in the declaration, and, as to that point, was overruled by the decision in the case of Hill v. Fitzpatrick, 6 Ala. Rep. 314; but it must still be regarded as an authority to show that a demand must be proved, notwithstanding it may be sufficient to assign the general breach that “ although often requested, &c., the defendant refused to pay.” This distinction did not occur to me when I wrote the opinion in the case of Nelms v. Williams, 18 Ala. Rep. 650, and what is said in that case, seemingly in conflict with the view here expressed, must be regarded as dicta merely.

Where a note is payable on demand, the statute commences running, it is said, from the date of the note. The reason is, that an action may be maintained upon it immediately without demand. Blanchard on Lim. 45; Norton v. Ellam, 2 M. & W. (Ex.) Rep. 467; Presbrey v. Williams, 15 Mass. Rep. 193; Ruff v. Bull, 7 Har. & John. 14; Angel on Limitations, 97. But if the note be payable so many days after demand, the statute begins to run from the demand, because until that time the action does not accrue. Angel on Lim. 98, and cases cited in notes to 2d Ed.; ib. 178-9. The demand must, however be made in a reasonable time after the collection. What shall be considered a reasonable time, has not been, and perhaps cannot be settled by any definite rule as applicable to all cases; but must depend upon the peculiar circumstances of each particular case. Wallace v. Agry, 4 Mason Cir. C. Rep. 336; Ang. Lim. 98; see Coleman v. Rodgers, 10 Pick. Rep. 120.

What we have said will constitute a sufficient guide for the future conduct of the cause.

For the errors previously noticed, the judgment is reversed, and the cause remanded.

GOLDTHWAITE, J., not sitting.