Bradford v. Barclay , 39 Ala. 33 ( 1863 )

R. W. WALKER, J.

[1.] There was evidence tending to show, that the defendant and Brown (the plaintiffs’ intestate) were equally interested in the judgment in favor of Patterson v. Sawyer, and that the money on this judgment had been collected by the plaintiff, H. G. Barclay. The defendant’s claim on account of the money thus received was relied on as a set-off in the suit; and the court charged the jury that, if the money was received by Barclay more than three years before the commencement of this suit, defendant’s claim on account of it would be barred by the statute of limitations. In this the court erred. The claim of the defendant, on account of Barclay’s reception of this money, was obviously not an open account, and, therefore, not governed by the statute of limitations of three years. — Clay’s Digest, 326, § 78, 328, § 88; Mims v. Sturtevant, 18 Ala. 359 ; Caruthers & Kinkle v. Mardis. 4 Ala. 599 ; Shepherd v. Wilkins, 1 Ala. 62 ; Maury v. Mason, 8 Porter, 230 ; Angell on Lim. § 69, note 4. The bill of exceptions does not purport to set out all the evidence; and the question, whether the defendant’s claim for this money was a legal set-off to the demand sued on, is not before us.

[2.] Most of the other exceptions present questions as to the competency of evidence upon the question of agency. In questions of this character, it is sometimes difficult to arrive at a very satisfactory conclusion, and the legality or illegality of the evidence often depends upon slight circumstances, which are not apt to be offered in precisely the same form or connection on different trials of the same ease. For this reason, we do not consider it necessary, at this time, to go into a particular examination of the exceptions which raise the questions here alluded to. It may be well, however, to state the general principles by which the competency of such evidence is to be determined. The mere acts of the assumed agent, unaccompanied by evidence tending to show the principal’s knowledge of, or assent thereto, are not competent evidence to be submitted to the jury upon the question of agency. But, where there is any evidence tending to show the assent of the principal to the acts of the agent, these acts, in connebtion with such evidence of the principal’s assent, should be allowed to go to tbe jury; and if tbe acts of tbe alleged agent are of sucb a nature, or so continuous in tbeir character, as to furnish in themselves any reasonable ground of inference that tbe principal knew of them, and would not have permitted tbe assumed agent thus to act in tbe absence of authority for so doing, tbe acts_, themselves are at least competent evidence to be submitted to tbe jury. — Gimon v. Terrell, at this term; 2 Phill. Ev. (C. & H.’s notes, ed. 1843,) pp. 188-9; Scott v. Crane, 1 Conn. 255 ; Moore v. Patterson, 28 Penns. St. R. 505 (512-13) ; Forsyth v. Day, 41 Maine, 382 ; Dow v. Perrin, 2 Smith, (N. Y.) 325 ; Kidd v. Cromwell, 17 Ala. 648 (652) ; Scarborough v. Reynolds, 12 Ala. 259 ; McDonald v. Br. Bk. Montgomery, 20 Ala. 318 (317) ; McDougald v. Dawson, 30 Ala. 553 ; Krebs v. O'Grady, 23 Ala. 726; Kent v. Tyson, 20 N. H. 121 ; Cobb v. Lunt, 4 Greenl. 503 ; McClung v. Spotswood, 19 Ala. 165.

Note by Reporter. — Tbe foregoing opinion was delivered at tbe June term, 1861.

[3.] Tbe court did not err in refusing to allow tbe former deposition of tbe witness Henderson to be read for tbe purpose of impeaching him. A witness, who has been orally examined, cannot be impeached by proof of contradictory statements made by him in a deposition previously taken in tbe same case, unless a foundation for doing so is first laid, by inquiring of tbe witness as to sucb previous statements. — Hughes v. Wilkinson, 35 Ala. 470-1 ; Powell v. State, 19 Ala. 577 ; Ures v. Charlton, 12 Gratt. 484; Conrad v. Griffey, 16 Howard, 38. This does not appear to have been done in this case.

For tbe error we have pointed out,(tbe judgment must be reversed, and tbe cause remanded.

A. J. Waleer, O. J., not sitting.