Drum & Ezekiel v. Harrison , 83 Ala. 384 ( 1887 )

SOMERVILLE, J.

1. The declarations of Thomas, made by him to the defendants while he was in possession of the cotton in controversy, .were explanatory of his possession, as showing the extent of his claim to it — tending to show that he held it as agent of another, and not as his own — and were, therefore, admissible in evidence to prove the fact of such ownership. — Humes v. O'Bryan, 74 Ala. 64, and cases cited on page 80.

2. It was competent for the plaintiff to show, on cross-examination, the bias of the witness Wilkinson, by proving that he was sued in another action by the plaintiff, for a portion of the cotton subject to the same mortgage which was held by plaintiff on the cotton' in controversy, and that the defense to each suit was the same — viz., the alleged permission given the mortgagor to sell the mortgaged property.

3. The mode of conducting the examination of witnesses, and the order of introducing evidence, is generally within the discretion of the trial court. Either party may be permitted to introduce evidence at any stage of the trial, and the exercise of this discretion is not revisable in this court. Borland v. Mayo, 8 Ala. 104; Phœnix Ins. Co. v. Moog, 78 Ala. 286; 1 Whart. Ev., §§ 572-575; Wesley v. State, 52 Ala. 182.

4. The court properly instructed the jury, that an authority given by the plaintiff’s intestate to the mortgagor, Kolb, by which he was permitted to sell the cotton, could not be delegated by Kolb to Thomas. It involved the exercise of discretion and judgment ■ on the part of the seller, and, therefore, involved a trust which was in its nature personal to the agent. “The leading distinction,” as said by Mr. Bishop, “is, that an agency to be exercised thiOTgh a discretion in the agent is a personal trust, and can not be transmitted to another, but a power simply ministerial may be.” Bishop on Contracts (Ed. 1887), § 1067. It is only where an agent to sell has fixed' the price, and done whatever else that is discretionary, that he may consummate his sale by a sub-agency.- — Renwick v. Bancroft, 56 Iowa, 527. Such an agency can not be delegated to a sub-agent, unless, perhaps, it may be implied in some of the modes authorized by established commercial customs; as where an agent employs a broker to make the sale, and he does so according to the usages of trade at the place where the sale is made. — Wharton on Agency, § 187. The mortgagee may have been perfectly willing to trust the mortgagor with such a commission, and yet be unwilling to risk his subordinates, or employees.

5. The failure to prove the number of pounds contained in the two bales of cotton did not. require a verdict for the defendants, as requested by their counsel. If it was not permissible for the jury to infer from their common knowledge what was the weight of an average bale of so staple a commodity, they certainly would be authorized to find nominal damages; and this right the charges asked on this point denied to them. It is insisted in argument, that the sale by Thomas was ratified by the plaintiff’s intestate; but no ruling of the court clearly raises this point, and the finding of the jury was otherwise.

The other assignments of error are not, in our opinion, well taken, and the judgment must be affirmed.