Gimon v. Terrell , 38 Ala. 208 ( 1861 )

R. W. WALKER, J.

The plaintiff’s objection to the evidence of the first witness for the defendant, was to the evidence as a whole. Consequently, if any portion of it was admissible, the objection was properly overruled. A part of-this evidence was, that the witness “saw Peter Desplons, fon one or two years before the drowning of Brister, at different'times officiating in hiring and looking after the negroes belonging to the plaintiff”. Whether Desplons was the agent of the plaintiff to hire or manage Brister, was one of the questions-an the case ; and we think that the evidence above quoted was relevant to this question. If is true thát'í as a general rule, 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. 259 ; McDonnell v. Branch Bank of Montgomery, 20 Ala. 317 ; McDougald v. Dawson, 30 Ala. 553. And it may also be true, that ¡mere acts, of .the assumed agent, unaccompanied by any, evidence tending for show that the principal had knowledge ofi orrassented thereto, are not even competent evidence to be, submitted to'the jury upon the question of agency. — See 2 Phill. Ev. (C. & H.’s Notes, ed. 1843,) 188—9 ; Scott v. Crane, 1 Conn. 255 ; Moore v. Patterson, 28 Penn. St. R. 505 (512-13) ; Forsyth v. Day, 41 Maine, 382; Dow v. Perrin, 2 Smith, (N. Y.) 325 ; Kidd v. Cromwell, 12 Ala. 648 (652). But, .¡where there is any evidence tending to show the assent of the. principal to the acts of the agent, these acts, in connectkimwith such evidence of the principal’s assent thereto, should be allowed to go to the jury. And if the acts of the alleged agent are of such a nature, or so continuous in their-character, as to furnish in themselves any reasonable ground’ of inference that the plaintiff knew of them, and would not have permitted the assumed agent thus to act in the absence of authority for so doing, the acts themselves are at least competent evidence to be submitted to the jury. — See McDonnell v. Branch Bank, 20 Ala. 313; Krebs v. O'Grady, 23 Ala. 726 ; Kent v. Tyson, 20 N. H. 121; 2 Phill. Ev. (ed. 1843,) 188-9 ; Cobb v. Lunt, 4 Greenl. 503. We think that the evidence under ’discussion* falls within this principle ; and although ibmay’betrue thabthe acts of Desplous referred to by- the witness were not of¡ such a character as to furnish of themselves sufficient evidence of the -principal’s knowledge and assent, yet the insufficiency of the testimony is not an argument against its competency. The question of- agency is matter of fact, which it is the province, of the jury to decide upon ; ;and if there is any evidence tending to-prove the-”-authority of the agent, its sufficiency and weight shou-kT-be left to the jury, under proper instructions from-the court. — McClung v. Spotswood, 19 Ala. 165.

2. In like -manner, a part, at least, of the evidence of the second witness, was- admissible; and the objection, feeing, to the entire evidence, was rightly overruled. Assuming that Desplous was the-agent-of the plaintiff to hire Blister, the- testimony that “before the negro was drowned, Desplous came down-to the Lucy Bell, and inquired of witness'abe-ut Blister ”, was relevant evidence, as it tended to show the agent’s knowledge of, and assent to, the employment cf. the negro by the defendants. If Desplous was* clothed with authority to “hire and look after” Blister, then-the faebthat he knew of,,and assented to, the employment of- the slave by another, would tend in some degree, however: slight! to prove a hiring? and any circumstances tending to showe a hiring of-the slave by the plaintiff’s, agent to the defendants, were-tsi’early admissible as evidence.

3. The charge asked was-double, asserting two distinct propositions ; one of which was, that “ although Desplous was the agent of the •plaintiff in hiring and looking after his negroes, this would not authorize Desplous to permit the defendants to use-the negro Brister, so as to bind the plaintiff, if their-: ©rigi,nal - possession was unauthorized and illegal”. It is clear -thabtlre property in-the negro was not changed by tkevsmauthorized and- illegal- possession of the defendants. The property being- still in the plaintiff, bis agent, empowered to hire and look aft’ér his-negroes, bad authority, by hiring the negro to the defendants, bo legalize their subsequent use of him, although their prior possession was unauthorized. One of the propositions of the charge being erroneous, the court did not err in refusing it entirely, even if the other proposition was correct, — as to which it is not necessary to express an opinion. — Slater v. Carter, 35 Ala. 679.

Judgment affirmed.