Learned-Letcher Lumber Co. v. Ohatchie Lumber Co. , 111 Ala. 453 ( 1895 )

HEAD, J.

In an action on account for goods sold and for money had and received, wherein appellee was plaintiff and appellant, defendant, it was in issue whether one Day was agent of the defendants in the transactions which the controversy involved. Day had written sundry letters to plaintiff’s president, in respect to these transactions, and the circuit court told the jury that they might look to those letters for the purpose o’f ascertaining whether or not he was the agent of the defendants. This instruction violated the cardinal rule that; acts and declarations of one professing to act as agent of another, unknown to, and not ratified or acquiesced in by the supposed principal, cannot be received to establish the fact of agency. There must be independent proof of the agency, from which it must be determined whether that relation existed or not. Such proof being adduced the acts aiid declarations of the supposed agent may be received to shed light upon the material questions involved in the controversy,- to be considered by the jury, if, upon the independent proof of agency, they shall be of opinion that that relation did exist; but they cannot be considered, when it is not shown that the supposed principal had, in any wise, committed himself to them, for the purpose of proving the relation itself. — 3 Brick. Dig. 21, § 43; Womack v. Bird, 63 Ala. 500; Tanner & DeLaney Engine Co. v. Hall, 86 Ala. 305; Martin, Dumee & Co. v. Brown, Shipley & Co., 75 Ala. 442.

As this error operates'to reverse the judgment, we will not pass upon the assignments of error touching the judgment of the court upon the motion for a new trial.

Reversed and remanded.