Ala. & Tenn. Rivers Railroad v. Kidd , 29 Ala. 221 ( 1856 )

STONE, J.

1. The appellant is a private corporation, (Angelí & Ames on Corporations, 28-4); and as the pleadings do not bring before us the act of incorporation, the question arises, had the company authority to appoint an agent? Corporations are clothed with power to do all acts that are necessary and proper to carry into effect the purposes of their creation. — Angelí & Ames on Corporations, 200, and authorities cited. The name of this corporation imports that it was created to construct a railroad, or use such road in transportation. Agents are necessary to the accomplishment of either object.

2. The doctrine is now well settled, at least in the United States, that the appointment of an agent by a corporation, need not be evidenced by the written vote of its functionaries; but that it may be inferred from the adoption of the acts of the agent by such functionaries, or by the corporation,— Story on Agency, § 52 ; U. S. Bank v. Dandridge, 12 Wheat. 64 ; Yarbrough v. Governor & Co. of Bank of England, 16 East, 6.

3-4. It is contended for the appellant, that the receipt for the cotton, copied in the record, shows on its face that Bates was but the agent of Sawyer, himself an agent. The receipt, in this connection, shows nothing more than that it was written by Bates. For aught that appears on the paper, Sawyer may have been present and acting, while Bates was simply his amanuensis. The testimony of Bates proves that he received his appointment from Sawyer. He also proved-several other facts — viz., that he, as the agent of the railroad, received plaintiff's cotton; that be gave the receipt; that both, the superintendent and the ■ president of the company knew of his (Bates’) acts in the character, of agent, and made no objection ; that he, the witness, knew of at- least two instances, in which the railroad officials had delivered freight on the production of witness' receipts; • and that the board had frequently given directions in their business to witness. To this entire evidence, there was a general ■ objection. The objection was rightly overruled, because some of the evidence was clearly legal. Indeed, we can perceive no valid objection to any portion of this evidence'. It tended to prove ratification of the agency, and to that end was admissible.— Price v. Br. Bank at Decatur, 17 Ala. 374 ; West v. Kelly, 19 Ala. 353 ; Murrrah v. Br. Bank at Decatur, 20 Ala. 392; Loughridge v. Thompson, ib. 828 ; Abney v. Kingsland, 10 Ala. 355 ; Brazier v. Burt, 18 Ala. 201.

5. It is contended for the appellee, that where the written contract of the parties expresses its terms, custom, or usage, no matter how well established, will not be permitted to vary, contradict, or control such written contract. This, seems to be the law. — Price v. White, 9 Ala. 565 : Kendall v. Russell, 5 Dana, 501 ; Schooner Reeside v. Stanley, 2 Sumner, 567 ; Poye v. Singleton, 2 Poster, 71. The distinction in such cases is this : While custom cannot contradict á stipulation in the writing, it may add new terms not expressed in, or covered by the writing. It is also contended that the testimony . offered to prove that the freight transported by the road was. generally deposited in the warehouse of Adams & Co., at Selma, tended to contradict the express terms of the written contract. We cannot assent to this construction. It did not tend to relieve the -railroad from its contract to deliver the cotton to its agent at Selma. On the .contrary, as we understand the bill of exceptions, it was conceded that the cotton was delivered to the agent; and the/railroad proposed to prove the custom, and under it justify the deposit of the cotton in the warehouse of , Adams & Co., .as a means of preserving the cotton after its delivery to the agent. This, then, could not relieve the railroad from observing its written contract to deliver to the agent; but, if the custom existed, and was proved according to the rules governing in questions of custom or usage of trade, it might relieve the road from the liability which would otherwise rest on it, for the loss of the cotton in the hands of its agent.

The testimony in this case may have been very weak: it may have been, wholly insufficient, without other proof; still, it was testimony bearing on the question, and it was the right of the party to have it passed on by the jury. — Gibson V. Culver, 17 Wend. 305.

- On the point, what is a good custom or usage, see Price v. White, supra; and Partridge v. Forsyth, at the present term. If the plaintiff should .think the proof insufficient to establish a valid custom or usage, he has ample means of protecting his interests, in his right to ask appropriate charges.

The court erred in rejecting the evidence offered by the defendant; and for that error,, the judgment of the circuit court is reversed, and the cause remanded. •