Alley v. Jesse French Piano & Organ Co. , 148 Ala. 303 ( 1906 )

WEAKLEY, C. J.

— By special plea numbered 2, in bar of the action, the defendant set up “an additional contract,” which it was averred the plaintiff executed, by its agent, W. M. Bates. Issue was taken on the plea, hut the execution of the contract was not denied by replication verified by affidavit. Section 1802 of the code of 1896, provides that “it is not necessary to prove the execution or assignment of any instrument offered in evidence under the plea of set-off or other plea in bar, unless the plaintiff put the execution or assignment thereby in issue by replication verified by affidavit.” The averment that the contract was executed by the plaintiff by its agent imported, ex vi termini, the affirmation of authority on the part of the agent to make the contract for the plaintiff. — McGeever v. Harris, post. 41 So. 930. If, however, the plaintiff desired to question the making of the contract, and the authority of the agent in that behalf, it should have filed a replication verified by affidavit, alleging that the contract relied on in the plea was not executed by it, nor by any one authorized to bind-it in the premises. Not having done so, the contract- offered in evidence, which tended to support the plea, was admissible without proof of the authority of Bates to execute it, and the objection to its introduction for want of evidence of authority was not good. It was an error to sustain the objection.

The defendant also had the right to prove Ms offer to deliver the piano to the plaintiff, and his readiness to do so at any time, as averred in the special plea, and the circuit court erred in disallowing proof along this line.. If the excluded evidence had remained, its credulity would have been for the jury, and in the state of the pleadings :and evidence the affirmative charge for plaintiff could not have been properly given.

Reversed and remanded.

HaRALson, Dowdell, and Denson, JJ., concur.