Powell's Adm'r v. Henry , 27 Ala. 612 ( 1855 )

G-OLDTHWAITE, J.-

The first charge requested on- the part of the appellant was properly refused. The rule is, that an unauthorized act of the agent may be ratified by the principal, and the jury were so instructed; but the language of the charge as asked goes beyond this, and either asserts that the mere delivery of an account to an agent, for the purpose of settling it one way, confers authority to settle it in any other mode, or that the principal is .bound, unless he repudiates the acts of the agent done without authority. In either aspect, the proposition is not to be maintained.

The second charge was objectionable, for the reason, that if the agent took the note as collateral security, of which there is some evidence, it did not extinguish the original claim; and in that aspect, no inference as to its payment could properly be drawn from the recognition of the act by the principal.

The third charge asked is in direct opposition to the law of agency, which requires every one dealing with an agent to ascertain the extent of his authority. It is true that the power of an agent to bind his principal will frequently be implied from the nature and extent of the employment of the former ; but no case has gone so far, as to hold that the mere circumstance of a person being employed as a clerk in a store authorizes him to compound the debts due to his’ .employer. If there was any evidence that such authority had been usually exercised by him, and that it was known to the person making the settlement, the case might have been different; but there was no such testimony.

Neither was there any error in the refusal to give the fourth charge. There was evidence, tending to show that the maker of the note taken by Lee was insolvent; and if such was the case, and it was taken as collateral security, the retention of it, for never so long a period, would not warrant the inference of the payment of the original debt. The party who receives a note as collateral security, is bound to the use of due diligence ; and if, by his laches in this respect, the original debtor sustains damage, it is a good defence, pro tanto, to a suit against him on the original claim. — Russell v. Hester, 10 Ala. 535. But it is only the actual damage that in such case is recoverable, as no one but the parties to a bill or note can complain of laches, unless he can prove it has done him prejudice, and can only recover to the extent of such prejudice.-— Story on Bills of Exchange, § 305, note 4.

Judgment affirmed.