Garrett v. Trabue

• Citation: 82 Ala. 227,3 So. 149
• Parties: GARRETT v. TRABUE AND OTHERS.
• Decision Date: 05 May 1887
• Court: Alabama Supreme Court

3 So. 149

82 Ala. 227

GARRETT v. TRABUE AND OTHERS.

Supreme Court of Alabama

May 5, 1887

Rehearing refused July 11, 1887.

Appeal from circuit court, Limestone county; H. C. SPEAKE, Judge.

This action was brought by Trabue, Davis & Co., partners engaged as merchants in the city of Louisville, Kentucky, against P F. Garrett, as the administrator of the estate of Mrs. Eliza A. F. Lane, deceased; and was commenced on the twenty-sixth of October, 1883. The complaint contained only the common counts for goods sold and delivered, amounting to $528.51 and the only plea was the general issue. The accounts for the goods sold and delivered contained items furnished on five different days, namely, March 25, April 19, May 20, July 3 and July 6, 1882, which consisted of bulk meat, corn, etc and these were sold and shipped on orders sent by mail by E J. Russell, as the agent of Mrs. Lane. The goods shipped on May 20th were ordered on May 15th, and Mrs. Lane died early in the morning of the next day. Letters of administration on her estate were granted to the defendant on the eighth of August, 1882, and the plaintiffs' claim was presented to him on the seventeenth of August, 1883. On the trial numerous exceptions were reserved by the defendant to the rulings of the court, all of which are here assigned as error, (22 in all;) but it is only necessary to notice the following: The plaintiffs introduced E. J. Russell as a witness, through whom, as agent for Mrs. Lane, the goods were ordered and shipped. The defendant objected to the competency of said Russell as a witness on the ground that he was beneficially interested in the result of the suit, and was incompetent to testify as to any transaction with or statement by the defendant's intestate; and he duly excepted to the overruling of his objection. Said Russell testified, in substance, that he had authority, as agent for Mrs. Lane, to order the goods as he did; that he had been engaged in business as a merchant, in Athens, "up to early in 1882, when he went out of that business; that Mrs. Lane then employed him as her general agent, to manage, look after, and superintend her property and affairs, consisting of a house and lot in Athens, and several plantations in Limestone county, and her dealings in the community; that she gave him special authority to procure from plaintiffs the supplies here sued for, in order to furnish tenants on her plantations, according to his contracts as agent when he let out the lands to them for the year 1882;" and that he gave the written orders for the goods, as shown by the account which he produced, and which had been made out by him on the request of the plaintiffs' attorney to be filed as a claim against Mrs. Lane's estate. The first order was dated March 21, 1882, addressed to plaintiffs, signed by "E. J. Russell, Agent," and in these words: "When Col. Wright was here I spoke to him in regard to furnishing me, as agent for Mrs. Lane, $300 or $400 in supplies for renters on her places, and proposed to give you shipments of cotton from these places for the accommodation. I know the shipments will be as much as 40 B. C., and probably more, and all other shipments that I can control. I will want this arrangement separate from others you may make with parties here, so that I can get the benefit of profits in retailing to the hands. If you can accommodate me in this way, please send 50 bu. corn and 300 lbs. meat at once." To each part of this evidence the defendant objected, as irrelevant and illegal, and duly excepted to the overruling of his objections. The third item of the account was for the goods ordered on the eighteenth of May, 1882, the order being signed by "E. J. Russell, Agent;" and the defendant objected to its admission as evidence, "because it was by said Russell in his individual capacity," and "because said Russell, as agent, had no authority to make said order," and "because defendant's intestate died before said order was filled by plaintiffs." The court overruled the objections, and admitted the order as evidence; to which rulings the defendant excepted. Evidence as to the other items of the account was admitted against the objection of the defendant; but the court instructed the jury, after the evidence was closed, to disregard all the evidence as to these items. One Hudson, a traveling agent of the plaintiffs, was examined as a witness for them, and testified, against the objection of the defendant, that among the merchants on Main street, in the city of Louisville, Kentucky, when they filled orders as in this case, the custom was to date the bills as of the time at which the orders were received; and to the admission of this evidence the defendant duly excepted. Said witness was also allowed to testify, against the objection of the defendant, that said Russell was insolvent when these several orders were sent and filled; that his insolvency was known to plaintiffs; and that they would not have sold him goods on credit on his personal responsibility; and exceptions were duly reserved by the defendant to the admission of each part of this evidence.

The court charged the jury as follows: "As to the third item of the account," (the goods ordered on the fifteenth, and shipped on the twentieth of May,) "if the jury find, from the evidence, that said Russell was agent for Mrs. Lane, with authority to make this account; and that said item is correct; and that said Russell mailed said order on the fifteenth of May, 1882; and that Mrs. Lane did not die until the morning of the sixteenth of May; and that said plaintiffs filled said order on or about May 20, 1882, without any notice of the death of Mrs. Lane,-then plaintiffs would be entitled to recover as to this item of the account." The defendant excepted to this charge, and he here assigns it as error, together with the other rulings to which he reserved exceptions.

Syllabus by the Court.

In an action against an administrator seeking to charge the intestate's estate with an account contracted by an agent whose authority is denied, the agent is a competent witness for the plaintiff, to prove the fact of his agency, and the extent of his authority; the statute which excludes the testimony of parties as to transactions with a deceased person whose estate is interested in the result of the suit (Code, § 3058) having no application to such case.

An agent cannot bind his principal by a contract in which he has an adverse personal interest; but this principle is not applicable to an order sent by an agent having charge of several plantations belonging to his principal for goods to be furnished to the tenants, because it shows on its face that he desired, or expected, to "get the...