Allen v. Jacob Dold Packing Co. , 204 Ala. 652 ( 1920 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The trial was had before the court without a jury, and resulted in a judgment for the defendant on counts 1, 4, and 6 of the complaint as last amended, and in a judgment for the plaintiff on the fifth count as amended.

The suit was by plaintiff for damages against Jacob Dold Packing Company for its failure or refusal to enter into contract with the former for the lease of a storehouse in Birmingham, Ala., as set forth in counts 1, 4, and 6; and, in the fifth count, for conversion of "47 sides of meat D. S. clear bellies with packing house number 104." Defendant pleaded the general issue and non est factum.

A decisive question of the appeal of plaintiff under counts 1, 4, and 6 is whether the writings evidencing the agreement upon which plaintiff must rely for a recovery were sufficient to meet the requirements of the statute of frauds. Code 1907, § 4289; Rains v. Patton, 191 Ala. 349, 67 So. 600; Troy Fertz. Co. v. Logan, 96 Ala. 619, 621, 12 So. 712. The negotiations for the lease — on which said counts rested — on the part of the nonresident defendant were conducted by an agent at Birmingham, who embodied the offer of sale of personal property and option for the lease of the storehouse in a letter of June 10, 1918, signed in defendant's name by said agent at Birmingham. It is without conflict in the evidence that the principal purporting to be bound by the letter did not sign it, though it was written on defendant's stationery and purports to have been written from Wichita, Kan., June 10, 1918. It was written in Birmingham, Ala., and the name of defendant was affixed thereto, by the agent "Stotler." The purported acceptance of the terms outlined in defendant's letter, on the part of the plaintiff, is his letter of June 11, 1918, as follows:

"Jacob Dold Packing Co., Birmingham, Ala. — Gentlemen: We beg to acknowledge receipt of your letter of the 10th outlining our verbal agreement and we wish to advise that same is satisfactory and you may go ahead and have the proper papers drawn up for the signature of the contract in parties. Yours very truly, E. P. Allen Company. EPA/OC."

The several telegrams of the principal to the agent and his letter, in its name, of June 10, 1918, will be set out by the Reporter in the statement of facts.

The question of agency and liability of the principal has been the source of frequent discussions by the courts. Southern States Fire Ins. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63. Of the proof of agency and the extent thereof, see Roberts Sons v. Williams, 198 Ala. 290, 73 So. 502.

Should an agent be authorized to enter into such an agreement as that which by law is required to be in writing, or evidenced by "some note or memorandum thereof, expressing the consideration * * * and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing," the authority of such agent must also be by a writing conforming to the statute. Code 1907, § 4289; Thompson v. New South Coal Co., 135 Ala. 630, 634, 34 So. 31, 62 L.R.A. 551, 93 Am. St. Rep. 49; Linn v. McLean,85 Ala. 250, 252, 4 So. 777; Johnston v. Jones, 85 Ala. 286,289, 4 So. 748; 1 A.L.R. 1134, n.

Mr. Stotler was directed by Mr. Fred Dold, vice president of defendant company, to go to Birmingham, solicit bids for the disposition of the lease on defendant's storehouse in that city, and submit bids to the Wichita office. Such was the special agency testified to by Dold and Stotler, and it was uncontradicted. That Stotler told plaintiff the extent of his authority is without dispute — this before the letter in question was written by Stotler to Allen, and to which the latter replied the next day. Had Stotler been a general agent, for him to have been legally authorized to enter into a lease of the storehouse for more than a year, or even for a 1 year, to begin at a future date, the authority therefor must have been in writing, pursuant to the statute; otherwise his contract relating thereto would have been void on account of the statute of frauds. The telegrams referred to do not express the agreement containing the consideration subscribed by the parties charged, etc., as required by the statute. The judgment of the lower court against plaintiff on counts 1, 4, and 6 is affirmed.

The cross-appeal of Jacob Dold Packing Company is likewise without merit. The suit on the fifth count was for the conversion of meat with the packing house No. 104, delivered to C. B. McIntyre by defendant's agent in response to McIntyre's order. The evidence shows the location of the plaintiff's meat, with the No. 104, to have been in defendant's storehouse near or next to defendant's refrigerator, in the basement of defendant's premises the subject of the negotiations for the lease, and the conduct of defendant's business as to filling orders for meat was detailed. After all that may be said, the preponderance of the evidence showed a shortage in plaintiff's meat with such number, and substantially a like excess to the defendant; that the latter did not have or handle, at the time this order was filled, meat with packing house No. 104. It is undisputed that the meat delivered by defendant to McIntyre was so branded. We need not further discuss the evidence given before the trial judge without a jury. We have no doubt from the evidence that defendant's agents negligently or wrongfully filled its order to McIntyre with plaintiff's meat. If it had been stolen or wrongfully taken by third persons and not by the defendant bailee, it would not have been liable in trover for the conversion of the property. There would be liability for same, however, if taken by such bailee's agents for the use of defendant. Bolling v. Kirby, 90 Ala. 215, 222, 7 So. 914,917 (24 Am. St. Rep. 789). Mr. Justice McClellan there said:

"Conversion, which will sustain trover, must be a destruction of the plaintiff's property, or some unlawful interference with his use, enjoyment, or dominion over it; an appropriation of it by the defendant to his own use, or to the use of a third person, in disregard or defiance of the owner's right; or a withholding of possession under a claim of title inconsistent with the title of the owner."

If defendant's servants carelessly, inadvertently, or wrongfully filled McIntyre's order with plaintiff's meat in defendant's storehouse (pending the negotiations for such premises), it would be such an unlawful interference with Allen Co.'s use, enjoyment, or dominion over it and of its appropriation to defendant's use so as to be a conversion which would sustain trover. Pope Co. v. Union Warehouse Co.,195 Ala. 309, 310, 70 So. 159.

We conclude the decision of the cross-assignment of error by Jacob Dold Packing Company by saying that we have considered the evidence and it supports the finding of the trial judge, where the evidence was given ore tenus before him (Ray v. Watkins, 203 Ala. 683, 85 So. 25), and that there was no merit in the objections and exceptions reserved on the introduction of the evidence.

The judgment against Jacob Dold Packing Company is affirmed.

Affirmed on direct and cross appeal.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.