Golding v. Merchant & Co. , 43 Ala. 705 ( 1869 )

'B. E. SAEEOLD, J.

-The charge of the court to the jury, that if the acts and conduct of the defendant, which were known to the plaintiff, were such as, from them, business men would ordinarily infer authority to the agent to borrow money and give a note therefor, in the name of the defendant, he would be liable for the act of the agent in so doing, was erroneous, because it would be to make the ordinary inference of business men a test or rule of agency, independent of the agreement of the parties. It would be far more difficult to unravel the intricacy of what acts and conduct would be sufficient to create this inference, than to determine whether the declarations and conduct of the defendant were such, as, in the opinion of the jury, authorized the plaintiff to believe that he had conferred the power on the agent.

The correct doctrine is, that an agent with limited powers, can not bind his principal when he transcends them. A person transacting business with an agent, on the credit of his principal, is bound to know the extent of his authority ; but if the principal, by his declarations or conduct,' authorized the opinion that he had given more extensive powers to his agent, than were in fact given, he would not be permitted to avail himself of the information.—Schimmelpenick et al. v. Bayard et at., 1 Peters, 264. The agency as claimed by the plaintiff was controverted, and there was evidence tending to establish it. The sufficiency of the evidence was a question for the jury, under appropriate instructions from the court.—Bank of Montgomery v. Plannett’s Adm’r, 87 Ala. 222; McDonald v. Br. Bank at Montgomery, 20 Ala. 313; McClung v. Spottswood, 19 Ala. 165.

The first charge asked by the defendant, that accepting and paying bills drawn by Jump in his own name on the defendant, was not giving him authority to borrow money, or 'to give defendant’s note for money which he had borrowed, was properly refused, as tending to mislead the jury. The abstract proposition is correct; but as an agency had been shown, these acts of the agent and the defendant, known to the plaintiffs, were circumstances to be considered by the jury in determining the extent of the powers of the agent. The remarks of the court, on refusing to give the charge, were erroneous, for invading the province of the jury. To say that third parties might imply the authority from such acts, was to declare the sufficiency of the testimony.

The second and fourth charges asked by the defendant, were properly refused, for the reasons assigned in the consideration of the first. The third charge asked was irrelevant, and therefore properly refused. There was no testimony whatever tending to connect the plaintiff with the fraud of Jump.

The judgment is reversed, and the cause remanded.

Note by Eeporter. — Tbe opinion in this case was delivered at the June term, 1868, but was in some way mislaid, and was not found in time to be inserted in 42d Alabama Eeports.