Stanley & Co. v. Sheffield Land, Iron & Coal Co. , 83 Ala. 260 ( 1887 )

SOMERVILLE, J.

— If the action were brought by the plaintiffs, as transferrees of the “labor-tickets” described in „ the bill of exceptions, it is clear that, under the authority of Tabler v. Sheffield Land, Iron & Coal Company, 79 Ala. 377, no recovery on them could be sustained. The count based on this phase of the case was abandoned, however, in the court below, by being stricken from the complaint, and the present action is on the common counts.

The suit can be sustained only on tbe theory, that the amount paid by the plaintiffs to the holders of these “labor-tickets” was paid to them by the request, or acquiescence of the defendant corporation, acting through some officer or agent possessing such authority. Much evidence was offered with the view of proving this fact, but all of it was excluded as inadmissible, on the ground that it did not tend to prove this disputed fact, the onus of which was on the plaintiffs.

The witness Miller, himself one of the plaintiffs in this action, testifies that, before he became interested as a member of the firm, he was in the employment of the defendant company as commissary, having authority to hire and pay laborers for grading the streets of Sheffield; and that he made an arrangement with the plaintiff, Stanley, by which it was agreed that, if he would purchase the company’s commissary supplies, and sell goods there, he could take these tickets by paying, merchandise for them; that the company would redeem them, and that the trade was made on the basis of this agreement. It appears that, at the time this agreement was made, the witness was negotiating to become a partner with Stanley in business. It is not shown that the company knew that this stipulation entered into the trade as a term, or condition of it, nor was any fact in evidence which tended to show any authority on Miller’s part to make such a contract. His employment certainly did not carry with it the incidental authority to borrow money, or obtain a loan in this manner from the plaintiffs, especially in view of the contracting agent’s contingent interest in the business.

The testimony of the same witness, to the effect that he was acting under the instructions of Gordon, the president of the company, who, at the time of the trial, was shown to be deceased, was properly excluded by the court, for two reasons: First, Gordon was, at the time of this transaction,' acting in a fiduciary relation to the defendant, against whom this evidence is sought to be introduced; and the plaintiff, being both a party and interested, was incompetent, under the statute, to testify to such fact. — Code of 1886, § 2765; Warten v. Strane, 82 Ala. 311. Second, there is no evidence tending to show that Gordon had the authority from the company, either expressly or impliedly, to give the instructions in question. The mere fact of being president of the company would imply no such authority, either in itself, or in connection with other evidence offered.

It was equally unavailing for Miller to show that, in making this agreement, he had the assent of one Beck, who was employed as civil engineer by the defendant company on their works at Sheffield; or of Adair, who was a stockholder and director of the company; or of McCracken, who was on a committee appointed to make necessary arrangements for the sale of lots in Sheffield held in May, 1884. There is nothing to show that these employees had any more authority in this matter than the witness Miller himself; and possessing none themselves, they could confer none, admitting that the agency was one of a nature capable of being delegated.

It is further assigned for error, that the court refused to allow the plaintiff to prove that, on a former occasion, it had been arranged between the defendant company and another firm, through the agency of the same witness, Miller, that they should take up these labor-tickets, and that the company would redeem them on their regular pay-day. A special authority of this nature, to make a particular, or single contract, is, standing alone, no ground for inferring an implied-authority to make other contracts generally, of the same kind, with other persons not specified by the principal. It is not any where intimated that this single exercise of agency was known to the plaintiffs, so that it was possible for their conduct to have been influenced or induced by it. And it certainly does not tend to prove such a habit and course of dealing between ‘principal and agent, as is ordinarily permitted to justify an inference of like authority in other cases. 1 Greenl. Ev. (14thEd.), § 65.

We are of opinion that- all the evidence excluded by the court was either irrelevant, or incompetent to show any authorized agency on the part of Miller, express or implied, to bind the defendant corporation by the contract which he is shown to have made with the plaintiffs.

The judgment is, accordingly, affirmed.