Garrett v. Trabue, Davis & Co. , 82 Ala. 227 ( 1886 )

CLOPTON, J.

— 1. The exceptions to the statutory rule, that there shall be, in suits and proceedings other than criminal, no exclusion of any witness because he is a party, or interested in the issue tried, is limited to the parties, the term being'construed to include, as within the scope and spirit of the exception, those who claim as beneficiaries under or by representation of a decedent, whose personal representative is a party. — Code of 1876, § 3058. The agent of a deceased person, whose estate is interested in the result of .the suit, may be called by the adversary party, when he does not claim under him, or is not beneficially interested, to testify to transactions with, or "statements by his deceased principal. Such agent is not a party, in the largest and most extended use of the term. In order that a case may arise for the application of the exception, there must exist a direct, present conflict of interest betweén the estate of the deceased and the living. The presumption being in favor of competency, the burden is.cm the defendant to show incompetency. The record does not disclose that the agent, who was examined as a witness, had a beneficial interest in the result of the suit, within the meaning of the exception. He was competent to prove his agency, and the extent of his authority. — Daily v. Daily, 66 Ala. 266; Wood v. Brewer, 73 Ala. 259; Smith v. Bryant, 60 Ala. 235; McCrary v. Rash, 60 Ala. 374; Hill v. Helton, 80 Ala; 528.

2. It was the legal duty of the plaintiffs, independent of a request, to keep the arrangement by which defendant’s intestate was furnished supplies, separate from similar arrangements with other parties. They might reasonably have understood, that the profits to be made in retailing to the hands were intended for the benefit of the principal; that the agent would act in good faith. On the terms of •the order, a case does not arise for the application of the general rule, that the agent can not bind the principal, where he has an adverse interest in himself; but it is a case of an agent making profits in the management of the matter of the agency, which belong to his principal, for which he is liable to account.

3. It does not appear that the agency is coupled with an interest, or that there was employment for a definite timé, supported by a valuable consideration. The general rule is, that the death of the principal operates, per se, an instantaneous revocation of an agency not coupled with an interest. — Scruggs v. Driver, 31 Ala. 274. Whether, on revocation by death, the parties being ignorant thereof, acts of the agent, done thereafter, are binding on the estate or personal representatives of the principal, we do not propose to discuss or decide. The agent knew of the death of his principal; but it does not appear that the plaintiffs were informed, when they forwarded the supplies called for by the order of May 15, 1882. The agent and the plaintiffs resided at different places. If the evidence of the agent is believed, an arrangement had been made in the early part of the year, by which the plaintiffs were to furnish supplies for the tenants of the principal. By the course of dealing between the parties, orders for supplies were transmitted through the mail. The hypothesis of the charge, given by the court is, that the order was mailed on the day preceding the death of the principal, and the goods were shipped by plaintiffs without notice of her death. Where the authority has been in part actually executed by the agent, at the time of revocation, the principal will not be allowed to revoke the unexecuted part as to the other contracting party, and his rights are unaffected by the revocation. — Story on Agency, § 466. The same rule is applicable in case of revocation by death. When the order was posted, the agent executed the authority so far as requisite to a valid contract ; and if the goods were shipped by the plaintiffs, in pursuance of the order, within a reasonable time, and in ignorance of the death of the principal, it became a completed contract from the day the order was deposited in the mail, binding on the estate of the principal, notwithstanding it was not received by the plaintiffs until after her death. — Hatchett v. Molton, 76 Ala. 410. Conceding there is error in admitting the orders subsequent to the death of the principal, it is cured by the instruction to the jury to disregard the evidence.

4. Though there may have been valid objections to the introduction of the account itself, the defendant having specified the grounds of objection, he will be regarded as waiving all other grounds. Neither of the grounds specified was sufficient to exclude the account. — Jaques v. Horton, 76 Ala. 238.

5. The alleged custom among the merchants on Main street in the city of Louisville did not tend to explain any ambiguous or doubtful term of the contract, or to show the intention, understanding, or agreement of the parties, in respect to a term as to which the contract is silent; which is the proper office of a usage or custom in trade. — E. T., V & G. R. R. Co. v. Johnson, 75 Ala. 596. Evidence of custom will not be admitted to displace a general rule of law. The question being whether the supplies were shipped before the plaintiffs received information of the death of defendant’s intestate, it is not permissible to prove the fact by evidence of a custom to enter the bills as of the date when the orders were received, though the goods may not in fact have been shipped on that day. The time of shipment, and that the plaintiffs were ignorant at that time of the death of the principal, with whose agent they contracted, are independent and material facts, not capable of being proved by a usage to date the bills as of the time the orders were received.

6. The insolvency of the agent, and that it was known to the plaintiffs, are circumstances proper to be considered by the jury in determining on whose credit the goods were sold, this being a disputed question. But parties, though made competent witnesses, are not allowed to testify to their uncommunicated motive or intention; and much less can a witness, who can not know, testify to the motive or intention of the plaintiffs, or to what they would or would not have done under given circumstances. Witnesses must speak to and of facts, and not to conclusions, which must be deduced by the jury, independent of the opinion of the witness. —McCormick v. Joseph, 77 Ala. 236; Whizenant v. State, 71 Ala. 383; Wilson v. State, 73 Ala. 527; Ala. Fer. Co. v. Reynolds, 79 Ala. 497.

We discover no other errors in the record.

Beversed and remanded.