Capital Security Co. v. Owen

• Decision Date: 18 May 1916
• Docket Number: 1 Div. 926
• Citation: 72 So. 8,196 Ala. 385
• Parties: CAPITAL SECURITY CO. v. OWEN.
• Court: Alabama Supreme Court

72 So. 8

196 Ala. 385

CAPITAL SECURITY CO. v. OWEN.

1 Div. 926

Supreme Court of Alabama

May 18, 1916

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Assumpsit by George F. Owen against the Capital Security Company. Judgment for Plaintiff, and defendant appeals. (Transferred from the Court of Appeals under section 6, p. 449, Act April 18, 1911.) Reversed and remanded.

The contract was what is known as the Home Purchasing Investment Contract, and contained the following:

"I make this application expressly and solely upon the terms and condition of said contract, and the option provisions, and requirements set forth on the back and made a part thereof, and not on the faith of any statement, promise or undertaking or guaranty on the part of the assignor or any other person. I understand that no agent of the Capital Security Company, nor any other person, is acting as the agent for the Capital Security Company in the sale of this contract to me. I understand that the Capital Security Company is not bound by any representation, promise, or statement of any person whatever, altering, changing, or modifying the contract in any particular."

The suit was for premiums paid and based on the fraud and misrepresentations of the agent selling the contract.

Edward S. Watts, of Montgomery, and R.H. & R.M. Smith, of Mobile for appellant.

Boyles & Kohn, of Mobile, for appellee.

THOMAS J.

The plaintiff's cause was tried in the law and equity court upon the common count for money had and received. The defendant pleaded, in short by consent: (1) the general issue; (2) estoppel; and (3) waiver of the fraud.

To the refusal of the court to give charges requested in writing by the defendant, as well as to the giving of the portion of the general charge excepted to, error is assigned.

The appellee insists that by the act of September 25, 1915, charges in writing moved for by either party become a part of the record, and must be presented for review as a part of the record, and not by bill of exceptions. The proper construction of this act under the adjudicated cases ( Petty v. Dill, 53 Ala. 641; Conway v. Clark, 171 Ala. 391, 55 So. 117; Diggs v. State, 77 Ala. 68; Irby v. Kaigler, 6 Ala.App. 91, 60 So. 418) is not now presented. The trial was had, the bill of exceptions presented to and signed by the trial judge, and the appeal perfected, before the passage of the act. Gen.Acts 1915, p. 815.

The bill of exceptions must affirmatively show that exception to a part of the oral charge was taken pending the trial, and before the jury retired. All the presumptions are that the trial court committed no error. City of Montgomery v. Gilmer, 33 Ala. 116, 70 Am.Dec. 562; Reynolds v. State, 68 Ala. 502; Moore v. State, 146 Ala. 687, 40 So. 345; Meadows v. State, 182 Ala. 66, 62 So. 737, Ann.Cas.1915D, 663. We are of the opinion that the record affirmatively shows that the exception to the part of the oral charge was taken pending the trial and before the jury retired. After the exception was taken, the court concluded the oral charge.

When the part of the charge excepted to is considered with the whole of the oral charge, it is obvious that no error was committed by the trial court in the oral charge. Williams v. State, 83 Ala. 68, 3 So. 743; Decatur Co. v. Mehaffey, 128 Ala. 242, 29 So. 646; Reeves v. State (App.) 68 So. 569.

It has long been the law where the agent, in selling chattels for the vendor, makes guaranties, agreements, or representations as a part of the contract of sale, or inducement thereto, and suit is brought by the vendor against the vendee, the latter is bound by the guaranties, agreements, or representations of the agent. Philips & Buttorff Mfg. Co. v. Wild Bros., 144 Ala. 545, 39 So. 359; Gilliland v. Dunn & Co., 136 Ala. 327, 34 So. 25; Holman v. Calhoun, 146 Ala. 690, 40 So. 356 ^[1]; Williamson v. Tyson, 105 Ala. 644, 17 So. 336; Atwood v. Wright, 29 Ala. 346.

The Philips & Buttorff Mfg. Co. Case is cited in 31 Cyc. 1259, with many authorities, to the effect that the principal cannot ratify a contract made for him by an agent, without also ratifying and becoming bound by the terms and conditions, although unauthorized, upon which it was made, nor ratify, without ratifying the representations and warranties, and all other instrumentalities employed by the agent as an inducement to effectuate or bring about the contract. 31 Cyc. 1259.

The burden of proving the agency rests upon the party affirming its existence. Ebersole v. So. B. & L. Ass'n, 147 Ala. 177, 41 So. 150; George v. Ross, 128 Ala. 666, 29 So. 651; Sellers v. Com. Fire Ins. Co., 105 Ala. 282, 16 So. 798; Spratt v. Wilson, 94 Ala. 608, 10 So. 209. So, of one who would relieve himself from personal liability on the ground of agency. Gillaspie v. Wesson, 7 Port. 454, 31 Am.Dec. 715. And it also applies to one who would charge another as principal with the act of an alleged agent. Ebersole v. So. B. & L. Ass'n, supra; Philips & Buttorff Mfg. Co. v. Wild, supra; George v. Ross, supra; Spratt v. Wilson, supra.

In Fulton v. Sword Medicine Co., 145 Ala. 331, 40 So. 393, where the suit was based upon a written order, signed by the defendant, addressed to the plaintiff, by which the defendant ordered certain goods at specified prices, and wherein it was stated that "none of the medicine shall be returned for credit," and "I, or either of us, accept this order on terms stated above. There is no verbal agreement aside from this order, of which I have a duplicate," the court said:

"The order signed by defendant, when accepted by the plaintiff, constituted a contract, which the parties had reduced to writing, and the defendant could not contradict the same by parol testimony. While it is true that, where goods are sold by an agent, the general rule is that, if the principal 'seeks to avail himself of the benefits of the contract made by his agent, he is bound by the representations made by the agent.' Gilliland v. Dunn, 136 Ala. 327, 34 So. 25; Williamson v. Tyson, 105 Ala. 644, 17 So. 336.

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