Anderson v. Timberlake , 114 Ala. 377 ( 1896 )

BRICKELL, C. J. —

The legal presumption is, when a known agent deals or contracts within the scope of his authority, that credit is extended to the principal and not to the agent; and that the dealing is the act, or the contract is the engagement,-of the principal alone, as if he were personally present and acting or contracting. This presumption prevails in the absence of evidence that credit was given to the agent exclusively, and the burden of proof rests upon the party seeking to charge him personally. If the contract or promise is in writing, its construction and effect are, ordinarily, questions of law for the decision of the court. But when the contract or promise is verbal, the. question, whether the credit was given to the agent in exclusion of the credit of the principal, is a question of fact for the determination of the jury, to be ascertained from a consideration of all the circumstances attending the transaction.— Mechem on Agency, § 558; 1 Am. & Eng. Encyc. of Law, (2d ed:), 1119-20; Whitney v. Wyman, 101 U. S. 392. In 1 Am. Lead. Cas., (5th ed.), 764, speaking in reference to verbal contracts made by or through an agent, it is said : “That when the relation of principal and agent exists in reference to a contract, and is known to the other party to exist, and the principal is disclosed at the time as such, the contract is the contract of the principal, and the agent is not bound, unless credit has been given to him expressly and exclusively, and it was clearly his intention to assume a personal responsibility ; but, if credit was given to him exclusively, and he intended to give his own personal engagement, he will be bound; and this, upon sufficient evidence, is a question for the jury on all the circumstances of the case.” In the recent case, Humes v. Decatur Land Imp. &c. Co., 98 Ala. 461, it was said by Coleman, J.: “To hold an agent personally liable in cases in which he discloses his principal, and that the services to be rendered are for the sole benefit of the principal, and the contract is within the scope of his authority, it must be shown that the credit was given exclusively to the agent, and that the agent was informed of that fact.”

Applying this well settled principle, the instructions to the jury, given at the instance of the plaintiff, numbered one, two and four, are essentially erroneous. They proceed, manifestly, on the theory, that the principal, the North Alabama Lumber & Manufacturing Company, and the defendant as agent, were, or could be bound, jointly or severally, by the same contract or engagement; or, that the promise of the one could be collateral to the promise of the other. While the true inquiry, an inquiry to be solved by the jury upon a consideration of the course of dealing between the parties, and all the attending facts and circumstances, was, whether any credit was given to the principal, or, whether it was given exclusively to the defendant, and it was his intention to become the sole debtor to the plaintiff. The fact that the defendant, at the commencement of the transaction from which the account originated, may have directed the accounts, as created, to be charged to him, or to himself and Kilpatrick, to which so much of prominence is given by the instructions, is far from being decisive that he intended to become the sole debtor, or a debtor jointly with Kilpatrick, to the exclusion of all liability on the part of the North Alabama Lumber & Manufacturing Company; nor is it decisive that the plaintiff did not extend any credit whatever to that company. The purpose of the direction may have been only to separate and distinguish the accounts the defendant was creating as agent, from the individual dealings he was having, or might have, with the plaintiff. As a fact, the direction is for the consideration of the jury, to be taken in connection with all other facts and circumstances attending the dealings between the parties, in ascertaining whether exclusive credit was extended to the defendant, and whether with knowledge of that fact, he intended to assume individual responsibility.

There was evidence having a tendency to show that prior and subsequent to the creation of the accounts, the defendant promised to pay them. Whether-the instructions were intended to direct the attention of the jury to the prior or to the subsequent promises, or, without distinguishing between them, were intended to embrace the whole, is not clear and certain. In this respect the instructions may have a tendency to mislead and confuse the jury, and for this reason, could have been, properly .¿.refused. But we are not "prepared to say,/the error is .cause for reversal; the defendant should have avoided whatever of injury may have' been ' apprehended, by a request for additional, or explanatory ■ instructions. A promise of payment by the defendant, subsequent to the 'creation of the accounts, would be void for a want of all consideration. The debt had been contracted, and if it was the debt of the principal, the promise of the defendant to pay it, was a mere undertaking or" engagement upon a consideration past and executed. — Jackson v. Jackson, 9 Ala. 791. A promise to pay at the time of the ¡Creation of the accounts, prima facie, would, be the promise of the principal, not involving the defendant in personal liability. Evidence of these promises is admissible upon the pivotal inquiry, whether credit was extended to the defendant solely, and whether it was his intention to bind himself and not the principal; they are circumstances attending the transaction between the parties, not to be disconnected 'from other facts and circumstances, and of themselves are not fitting elements of an instruction to the jury.

■ It does not clearly appear, that the agency of the defendant for the North Alabama Lumber & Manufacturing Company was a disputed fact. If it was, whether the plaintiff had knowledge, or was charged with knowledge' of the fact, depended in a degree upon oral testimony, and the inferences drawn from it by the jury. In such case, an instruction not referring to the jury the credibility of the testimony, is an invasion of their province. For this reason, the first instruction requested by the defendant was properly refused. — 1 Brick. Dig. 366, § 8. The second and third, are general instructions on the effect of the evidence, which are not proper, when there is any conflict in the evidence, as to any material fact or point involved in the. determination 'of the case. The seventh instruction should have been given. The writing to which it refers, in the execution of which the plaintiff joined, plainly contemplates the operation of the mill by the North Alabama Lumber '& Manufacturing Company; and of that fact, the plaintiff being a party to the writing, was charged with notice. This is the legal effect of the writing as matter of evidence, which it was the province and duty of the court o declare without hypothesis, the genuineness of the writing not being controverted. — Knox v. Fair, 17 Ala. 503 ; Rigby v. Norwood, 34 Ala. 129. The sixth instruction was properly refused. It withdrew from the consideration of the jury, the evidence having a tendency to show that the accounts were created by the defendant on his own credit solely, in exclusion of the credit of the Lumber .Company. An instruction withdrawing from the consideration of the jury, any evidence, however weak, tending to establish material facts, is calculated to mislead them, and is improper. — 1 Brick Dig. 344, § 135 ; Brown v. Newman, 66 Ala. 275.

The fourth and fifth instructions proceed on the proposition, that laches on the part-of the plaintiff in causing the drafts on Kilpatrick & Co. to be presented for payment, and in giving the defendant notice of their dis-t honor, discharged him from liability. 'Without discussing the truth of the proposition, if the defendant had been a party‘to the drafts — if he had endorsed them, or guaranteed their payment — they were transferred by delivery merely, if in the transfer the defendant had any agency. A creditor accepting a transfer of paper by mere delivery, as a conditional payment, or as collateral security, is bound to the use of due diligence in rendering it available. But the laches of the creditor in this respect, does not of itself, operate to discharge the transferror ; the laches must have caused loss or damage. 2. Dan. Neg. Ins., § 1278 ; Story on Bills, §§ 109, 305 ; Russell v. Hester, 10 Ala. 535 ; Powell v. Henry, 27 Ala. 612. The instructions pretermit the material inquiry, whether the laches imputed to the plaintiff, worked injury to the defendant, and were properly refused.— Wood v. Brewer, 66 Ala. 570.

The eighth instruction properly defined a discount, and should have been given. — Youngblood v. Birmingham Trust and Sav. Co., 95 Ala. 521; Saltmarsh v. P. & M. Bank, 14 Ala. 668. The ninth instruction is subject to the objecction, that it was calculated to mislead the jury by diverting their attention from the consideration of the testimony that the drafts were by agreement' of the parties taken only as conditional payment. ..

For the errors pointed out, let the judgment be reversed and the cause remanded.

Reversed and remanded.