Waring v. Moseley , 22 Ala. 667 ( 1853 )

PHELAN, J.-

The defence set up below to plaintiff’s action was, that Waring, tbe defendant, made tbe contract for tbe bire of tbe slave as agent of one Robinson, and not on bis own account. To make tbis defence good, it was necessary for defendant to establish by proof two facts: 1st. Tbat be made tbe contract with plaintiff’s testatrix as agent of Robinson; 2. Tbat be was in fact tbe agent of Robinson, at tbe time be made tbe contract, with authority to make it. Any proof tending to establish either of these facts, was material to tbe issue, and proper.

Tbe letter of Robinson to tbe defendant, giving him authority to bire tbe slave, and written previously to tbe hiring, was introduced, it seems, without objection. But tbe letter written after tbe hiring, and tending to prove tbe ratification of tbat act, was ruled out. Tbis was clearly proof tending to show tbe authority of tbe agent to bire at the time of tbe act of hiring. It was of tbe same character with tbe letter before tbe hiring, conferring tbe authority, and not, by any means, so strong as proof of tbe agency; but it could not be rejected on tbe ground tbat sufficient proof to tbat point bad already been produced. It was additional, or cumulative evidence, which a party has always tbe right to produce. Tbat it was written after tbe act of hiring took place, could make no difference. Tbe object was, to prove tbe agency by a subsequent ratification of tbe act of tbe agent. Tbis could be proved as a fact; and tbe admissions of tbe principal, either in writing'or by parol, were competent to show tbat fact.

It is not probable tbat tbe whole controversy below turned, not upon tbe question of agency at all, but upon tbe nature of tbe contract tbat was made; and tbat tbe proof which was rejected, was rejected because the fact of agency was not denied by tbe plaintiff, and no controversy existed on tbat point. If tbis was made to appear by tbe bill of exceptions, there would be no cause for reversing tbe case, as it would be error without injury. But as tbis does not satisfactorily appear, we are compelled to bold, tbat tbe court erred in rejecting tbe letter of Robinson offered by tbe defendant, as tbat was evidence relevant' to tbe issue.

Tbe judgement below is reversed, and tbe cause remanded.