Steen v. Sanders , 116 Ala. 155 ( 1896 )

HARALSON, J.

1. The conversation between Robert Clanton and the defendant, — objected to by plaintiff, as being irrelevant and immaterial, — wherein Clanton asked defendant to go with him to see Spann, the agent of the plaintiff, to get said agent to order some goods from plaintiff for him, the said Clanton, was merely preliminary to the balance of the transaction detailed by defendant, without objection, to the effect, that he went to Spann and told him that Clanton had sent him to get an order to plaintiff for some goods; that Spann wrote the order, and at the same time stated, that he, Spann, did not know Clanton, and he, Sanders, must stand between.him, Spann, and all fire. The conversation objected to was a part of the res gestae of the transaction growing out of it, and if the latter was admissible, which was not denied, as tending to show to whom credit was given for the goods, so Avas the former as a part of the latter. It was not offered except in connection with what grew out of it.

2. The conversation between the witness Morton and Spann in November, 1892, allowed to be stated by Morton, against the objection of plaintiff, was illegal and irrelevant evidence. The conversation occurred some months after the alleged liability of the defendant to plaintiff accrued, through the agency of said Spann. It is well settled that it is not within the scope of an agent’s authority to bind his principal by admissions having reference to by-gone transactions. These are irrelevant to the original transactions. — Ala. Gr. So. R. R. Co. v. Hawk, 72 Ala. 117; L. & N. R. R. Co. v. Carl, 91 Ala. 271; Terry v. Birmingham Nat. Bank, 93 Ala. 599.

3. The court erred in giving for defendant charge numbered 1. There is no evidence that the goods were in fact first charged to Clanton and Walker as hypothesized in said charge, and even if they had been so charged, that fact would not have been conclusive that credit was extended to them and not to the defendant. It would be evidence tending to show merely that the goods were sold and credit given to said persons. Such a fact, if true, should have been referred to the jury, together with the other evidence in the cause, to determine whether credit was given exclusively to defendant or not. — Sanford v. Howard, 29 Ala. 684; Ledlow v. Becton, 36 Ala. 596; Clark v. Jones, 87 Ala. 475, 480.

4. We find no objection to charges 2 and 3 given for defendant.

Reversed and remanded.