Anderson v. Timberlake

• Decision Date: 15 April 1897
• Citation: 22 So. 431,114 Ala. 377
• Parties: ANDERSON v. TIMBERLAKE. [1]
• Court: Alabama Supreme Court

22 So. 431

114 Ala. 377

ANDERSON v. TIMBERLAKE. ^[1]

Supreme Court of Alabama

April 15, 1897

Appeal from circuit court, Jackson county; H. C. Speake, Judge.

Action by P. B. Timberlake against John H. Anderson. There were a verdict and a judgment for the plaintiff. Defendant appeals. Reversed.

This is an action on the common counts. It was commenced by attachment. The exceptions here presented relate to the liability of the appellant for a certain portion of the indebtedness sued on, and for which he contends that he was not and is not liable. There is no dispute that the appellant was in fact a mere agent, on a salary, for the North Alabama Lumber & Manufacturing Company, during the time the indebtedness was contracted; that as such agent he was running a sawmill known as "Crow Creek Mill" and said indebtedness was contracted in the running of said mill. The appellee insists that the account was contracted by the appellant on his own responsibility; that he credited him personally, and knew no other person in the transaction. The appellee testified in relation to said account as follows "The defendant contracted an account with me in 1889 amounting to $1,012.25, and running from the month of March to the latter part of August. I have itemized statement of my account, because my book and statements were burned in the fire in my store at Stevenson last fall. The defendant was at the time of making the account running a sawmill known as the 'Crow Creek Mill,' located at the bridge across Crow creek, about one mile from Stevenson. The account is for goods and merchandise sold to him and his employés, and for money to pay on pay rolls to the hands employed at the mill. I was engaged in merchandising in the town of Stevenson at the time, and defendant made arrangements with me to let his hands have goods, and to pay the pay rolls he should furnish me from time to time, and charge the same to his account. The contract was made in this way. I never knew anybody else in the contract but the defendant. He directed me to keep the account on my books against Anderson & Kilpatrick, because he said he wished to keep the mill account separate from his own individual account, for his own convenience. He furnished me the pay rolls from time to time, showing amounts due to employés at the mill; and I paid same in money, or by entering credit on the accounts of the hands for their portion of the same. The pay rolls were signed by John H Anderson, the defendant. I have none of the pay rolls at this time, because they were all burned in the fire at Stevenson." On cross-examination the plaintiff said "It was understood between Mr. Anderson and myself that the account was to be settled in this way: I sent statements to Mr. Anderson, and Mr. Anderson sent me drafts when the account got larger than it ought to be. I sent the account with the request for draft to cover the amount. I had agreed with Mr. Anderson to handle their drafts. When I received these drafts, I did not discount them, but charged interest on them. I credited the full amount of the draft, but charged interest on it. For instance, if Mr. Anderson had a draft for $200, at sixty days' sight, I would give Mr. Anderson credit by draft, $200, and charge him interest on this amount for sixty days." Witness further testified that, if all the drafts had been paid, the accounts would have been overpaid some 30-odd dollars. In response to questions by defendant's counsel, the plaintiff produced the drafts referred to in his examination, and they were introduced in evidence by the defendant. The said drafts were drawn by the North Alabama Lumber & Manufacturing Company on Kilpatrick & Co., N. Y., in favor of the plaintiff, P. B. Timberlake, and were not indorsed by the defendant, Anderson. Each of said drafts was duly accepted by the drawees, but only two of them-one for $200 and one for $122-were protested for nonpayment. The plaintiff further testified that, after the failure of the North Alabama Lumber & Manufacturing Company, he ordered the other drafts returned without protest, in order to save protest fees. It was further developed on the cross-examination of the plaintiff that he and the defendant ran the Crow Creek Mill during the year 1888 under the name of Anderson & Timberlake, and that the plaintiff sold his interest therein to the North Alabama Lumber & Manufacturing Company March 15, 1889; that he made a contract in writing with said company of that date, which is set out in the bill of exceptions. It is also shown that after the failure of the North Alabama Lumber & Manufacturing Company the plaintiff presented said drafts to the assignees of that company, and made effort to collect them. That the defendant (appellant here) was in fact a mere agent of the North Alabama Lumber & Manufacturing Company was not controverted. The defendant testified that he never authorized the plaintiff to charge the account to him, and never agreed to become personally bound for its payment; that the plaintiff had run an account with the mill for a number of years prior to the formation of the North Alabama Lumber & Manufacturing Company, while the defendant was in the employ of Kilpatrick & Co., as their agent, and that said mill account had from time to time been paid in drafts, and that at the time the several drafts in evidence were sent to the plaintiff the credit of the North Alabama Lumber & Manufacturing Company was good, and that its paper passed current in the business world; that the plaintiff took the drafts in payment of the account, and never requested the defendant to indorse one of them. He further testified that the plaintiff knew full well at the time the account was contracted, and prior thereto, that the defendant was only an agent of the North Alabama Lumber & Manufacturing Company, and that the account in dispute was contracted for the benefit of the company. Frank J. Kilpatrick testified that he was the general manager of the North Alabama Lumber & Manufacturing Company; that said Crow Creek Mill was the property of that company; that the defendant, Anderson, was a mere agent, working on salary, and that the witness, as such general manager, authorized Anderson to make the arrangement with Timberlake by which he should pay off the hands working at the mill as shown by the pay rolls furnished him, in consideration of the company putting all the custom of the mill in Timberlake's hands; and that the latter furnished statements from time to time, and drafts of the company were sent him to cover whatever was then due. The witness further stated that, prior to the time when the indebtedness here sued for was contracted, he had a conversation with the plaintiff in regard to the matter, in which it was freely discussed that Anderson was the mere agent of the company, and that the account was for the benefit of the company.

At the request of the plaintiff the court gave to the jury the following written charges: (1) "If the account was charged to Anderson, or to Anderson & Kilpatrick, by Anderson's direction, and Timberlake extended the credit to him or them on this account, then it is his debt, and he is liable, notwithstanding the North Alabama Lumber &amp Manufacturing Company were parties beneficially interested in the account." (2) "Notwithstanding this might have been the account of the North Alabama Lumber & Manufacturing Company, still, if the defendant, John H. Anderson, at first had the account charged to him, and afterwards had it charged to Anderson & Kilpatrick, and promised to pay it, this would render him (Anderson) personally liable." (3) "If an agent contracts in his own name, without disclosing his principal, he incurs a personal liability, which is primary in its character." (4) "Notwithstanding this might have been the account of the North Alabama Lumber & Manufacturing Company, still, if the defendant, John H. Anderson, had the account charged to him, and promised to pay it, this would render him, (Anderson) personally liable." (5) "If the defendant owed the account, then the drafts were not a payment, unless such an agreement can reasonably be implied from the circumstances and facts in evidence." The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges, which were requested by him: (1) "Under the evidence in this case, the plaintiff is charged with knowledge of the fact, if it be a fact, that Anderson was the agent of the North Alabama Lumber Company." (2) "If the jury believe the evidence, the plaintiff cannot recover on the account, or any part thereof, to which the drafts were credited." (3) "If the jury believe the evidence, they...