Talladega Insurance v. Peacock , 67 Ala. 253 ( 1880 )

BRICKELL, C. J.

— The action was commenced, and the trial, verdict and judgment had, in the life-time of the intestate of the appellee. The cause of action is a promissory note, purporting to be made by the Talladega Insurance Company, payable to the intestate, in form and substance as follows : “$3,673.31. April 6,1863. One day after date, I promise to pay to the order of David McCullough, in American gold coin, thirty-six hundred and seventy-three dollars, at the office Talladega Insurance Company, for value received. (Signed) Talladega Insurance Company, by James G. L. Huey, Secretary.”’

Several pleas were filed, but the evidence introduced was directed particularly to the issue formed on a verified plea of non est factum. There are numerous exceptions (thirty-four in number), to the admission of evidence, and the instructions given, or refused to be given, the jury. With the exception of one instruction, which we will notice separately, there ,are but two questions involved. First, had the appellant power to borrow money, and for its payment, make a promissory note ? Second, had Huey, as Secretary, authority to borrow money for the company, and make its note, as security therefor ? .

The company was created by a special act of incorporation, approved February 13, 1856 ; and was entitled “to all the privileges, and invested with all the powers, and subject to all the restrictions, as were conferred arjd imposed upon the Tuskegee Insurance Company,” by the act incorporating that company, approved January 19, 1856. — Pamph. Acts, 1855-6, p. 261. The privileges and powers conferred on the Tuskegee Insurance Company, were the transaction of the-business of fire, marine, and life insurance; receiving of moneys on deposit, the collection of promissory notes and bills of exchange, the lending of money, and the purchase, discount, and sale of such notes and bills. Express power to borrow money, and issue the bonds of the corporation therefor, was conferred. — Pamph. Acts, 1855-6, p. 249.

1. The proposition now insisted upon, is, that this is a limitation upon the power of the company, restraining and confining it to the issue of bonds, for the payment of money borrowed, excluding the power to make any other evidence of the debt, such as a bill of exchange, or a negotiable promissory note. When this cause was before this court, at a former term (McCullough v. Talladega Ins. Co. 46 Ala. 376), it was held, this proposition could not be maintained; and such in-effect was the decision in Talladega Ins. Co. v. Sanders, 43 Ala. 115. We entertain no doubt these decisions are correct. It can not be matter of doubt, that every corporation clothed with the .powers conferred on this company, has an incidental and implied power to borrow money, and in the exercise of the power, may make paper negotiable, or not negotiable, and give such securities as may be deemed most advantageous. The power, though it may not be expressly conferred, is implied and incidental, unless of it there is express prohibition. — Ala. Gold Life Ins. Co. v. Central Ag. & Mech. Asso. 54 Ala. 73; Allen v. Montgomery R. R. Co. 11 Ala. 454; M. & C. R. R. Co. v. Talman, 15 Ala. 491. The clause of the charter referred to, declaring the company could issue bonds for money borrowed, can not be construed as limiting it to the making of such securities, excluding the implied and incidental power to make other usual securities and evidences of debt. It was doubtless intended from mere abundance of caution, rather as an additional grant of power to issue corporate bonds, which though so styled, and under the corporate seal, it was intended, unlike the bonds of a natural person, should have the qualities, properties, and privileges of negotiable paper. — Lucas v. Pitney, 3 Dutch. (N. J.) 227; Railroad Company v. Howard, 7 Wall. 412.

2. The powers of the company could be exercised, its business transacted, only through the intervention of officers or agents ; either such as are specially designated in its charter, or such as might be appointed by the proper authority,in pursuance of its express, or implied, or incidental powers. The charter provides that the governing body of the company, shall consist of a board of directors, of whom, one must be chosen president. The board is invested with full power in express terms, to appoint and remove at pleasure, all officers and agents of the company, and to prescribe their duties. It was doubtless intended that there would be written evidence of the appointment of all officers or agents, and of the duties assigned them, when their relation to the company was continuous, and their employment not casual and temporary. If there was such evidence of Huey’s appointment as secretary, and of the duties he was in that capacity to perform, it was within the peculiar knowledge, and exclusive possession of the appellant; and if it would have availed any purpose in this controversy, ought to have been produced. The appellee was not bound to produce it, or account for its absence. And whatever of presumption can be drawn because of its absence, must be visited on the appellant, who has voluntarily assumed the attitude of neglecting or refusing to produce evidence, which was in its power and possession, if it exists.

The appointment of the officers or agents of a corporation, strangers can not be compelled tor prove by written evidence. It may, or not, rest in writing; it may be inferred from the recognition, and continuous acquiescence by the corporation in the acts of such officers or agents.' — Ala. & Tenn. R. R. Co. v. Kidd, 29 Ala. 221. Whether the note, the foundation of suit, should be introduced and read in evidence, before any evidence was given of Huey’s agency, of his official relation to the company, or of his authority, was a matter largely of discretion with the plaintiff. It is but seldom necessary that the court can or ought to prescribe the order in which a party may introduce his evidence. When all the evidence is produced, if it is wholly insufficient to support the plaintiff’s cause of action, or the grounds of defense, it is the duty of the court, on motion, to exclude it. Or, if any part of the evidence is then irrelevant, because of the failure to connect it with other evidence, it ought to be excluded, on motion.

The principal issue, as we have already said, was on the plea of non est factum. The burden of proof rested on the plaintiff to show, not only that Huey was secretary of the company, but that as such he had authority to borrow money for the company. When evidence was introduced tending to show these facts, the note was admissible, and the evidence, however weak or slight it may have appeared to the court, could not be excluded from the jury. There was no disputation of the fact, that through a period of six or seven years, from the time the company organized, until there was a suspension of active business, Huey was its secretary. The duty and power with which he was clothed, is to be inferred from his acts in that capacity, which were known to, and acquiesced in, by the company. It is true, as a general rule, that agency must be proved otherwise than by the mere acts of the agent, before it can be assumed that such acts are binding on the principal. And it may also be true, that as a general rule, the mere acts of the assumed agent, unaccompanied by any evidence tending to show that the principal had knowledge of, or assented thereto, are not even competent evidence to be submitted to the jury upon the question of agency. Rut, when there is any evidence tending to show the assent of the principal to the acts of the agent, these acts, in connection with such evidence of the principal’s assent thereto, must go to the jury, and if the acts of the supposed agent are of such a nature and so continuous in their character, as to furnish in themselves, any reasonable ground of inference that they were known to the principal, and that in the absence of authority to the agent, he would not have suffered them, the acts are competent evidence to be submitted to the jury.— Gimon v. Terrell, 38 Ala. 208; McDonnell v. Br. Bank Montgomery, 20 Ala. 313; Krebs v. O’Grady, 23 Ala. 716. Within these principles certainly falls much of the evidence the appellant moved to exclude from the jury. That Huey openly and notoriously transacted the general business of the company — that he had possession and care of the office in which the business was transacted— the custody of its books and papers, and of its funds, and that he had, on more than one occasion, borrowed money for it, and the money was on the books of the company entered to the credit of the lender, were all facts having a tendency to show his relationship to the company — the duty and authority pertaining to the relation, and their publicity, notoriety, and continuity, were, it may be, sufficient in the judgment of the jury, to fix knowledge of them upon the company, and to authorize the inference that in the absence of authority for them, they would not have been permitted. It is true, that whoever deals with an agent, if he intends holding the principal to liability, must inquire into the extent of the authority of the agent. Corporations select their own officers and agents; strangers have no voice in this selection, and if they deal with the corporation must transact business through its agents. For the acts of its agents, while engaged in its service and in the line of their authority and duty, a corporation is liable to the same extent as would be an individual under like circumstances. "When it holds out a particular officer, or suffers the officer to hold himself out, as having particular or general authority, inviting dealings with him, if loss must ensue, the corporation must bear it, and not those who have so far as was known, or could be seen by them, dealt with him in the line and scope of his duty and employment. — Mer. Nat. Bank v. State Nat. Bank, 10 Wall. 604. There is no reason to suppose that Huey, in the original borrowing of the money of the plaintiff in 1860, or in the subsequent renewal of the promissory note for it in 1863, was guilty of any infidelity to the. company. No fact was shown from which it could be inferred .that he appropriated the money to his own, and not to the use of the company. The defense was rested wholly on the weakness or insufficiency of the evidence introduced by the appellant to show Huey’s agency and authority. If, however, there had been evidence tracing deceit to Huey in the transaction, it would not have been available, if the evidence satisfied the jury that the company had, by its mode of transacting business, its recognition and acquiescence in his acts, held him out to the public as its chief, or only executive officer, clothed with general powers to transact its business. When, as was said by Lord Holt, in Hun v. Nichols, 1 Salk. 289: “Seeing somebody must be a loser by this deceit, it is more reasonable that he that employs, and puts trust and confidence in the deceiver, should be a loser, than a stranger.”

The opinion of a witness, or a conclusion drawn by him from facts, as a general rule, is not admissible evidence. We do not think the statement of the witness that he regarded Huey as the general agent of the company, falls within this rule of exclusion. If it stood alone, disconnected from the evidence given previously and subsequently by the witness, it might be objectionable. When considered in connection with that evidence, it is a statement in a guarded form of the fact that Huey was the general agent of the company, accompanied by a statement of the witness’ means and sources of knowledge of the fact. — McGrew v. Walker, 17 Ala. 824.

Nor was the statement of the plaintiff, that the money was loaned originally in 1860, through his agent, and renewed annually until 1863, objectionable as hearsay. The only indication that the knowledge of the witness was derived from hearsay, was the subsequent statement that in the meanwhile he had been in Texas. This may have been true, and he may have had direct personal knowledge of the loan, and its renewals. If bis knowledge was derived wholly from hearsay, it could easily have been shown by a cross-examination on the point, to which he was not subjected.

In passing upon the admissibility of evidence, we have passed on the several instructions givén the jury (with one exception), to which the appellant reserved exceptions. It is not necessary to review them; they are in substantial conformity to the views we have expressed. The first instruction requested was erroneous, if for no other reason, because it asserted that the plaintiff must show Huey had express authority to borrow money for the company. The authority could be implied from his relation to the company, the nature of his employment, the mode in which he was permitted to conduct its business, and his borrowing on other occasions.

There was no question in this case growing out of a ratification by the company of any unauthorized act of Huey’s as secretary. Eor it must be borne in mind that if his authority was defined and declared, the appellant had the means of proving it, but neglected to avail themselves of it. The former acts of borrowing and the acquiescence of the company in them, were introduced for the purpose of showing the extent of his authority, and not that the company had, in any instance, ratified his unauthorized acts. The second and third charges requested, if there had been any question of ratification involved, may, or not, have been correct. In view of the evidence, they were abstract and misleading. There was no error in the addition made by the court to the fourth instruction requested. Tbe fifth and sixth instructions were properly refused, according to the views we have expressed.

3. All contracts for the payment of money, bear interest from the day the money is payable. — Code of 1876, § 2089. The court erred in the instruction that interest must be computed from the day of the date of the note, instead of the succeeding day, when it was payable. The error was inadvertent, and would have been cured if the appellant had called attention to it, and asked an instruction that interest should be computed from the day the note was payable. But instead of this, attention was directed from it, by the request of an erroneous instruction, that no interest could be computed or allowed. We are not of opinion, under these circumstances, the error, of itself almost insignificant, should avail to reverse the judgment.

Affirmed.