Gibson v. J. Snow Hardware Co.

• Decision Date: 01 December 1891
• Parties: GIBSON v. J. SNOW HARDWARE CO.
• Court: Alabama Supreme Court

10 So. 304

94 Ala. 346

GIBSON v. J. SNOW HARDWARE CO.

Supreme Court of Alabama

December 1, 1891

Appeal from circuit court, Tuscaloosa county; J. C. SPRATT, Judge.

Action by the J. Snow Hardware Company against F. L. B. Gibson for the price of a bill of hardware. Plaintiff had judgment, and defendant appeals.

All the facts, as well as the rulings of the court upon the evidence to which exception was taken and assigned as error in this court, are sufficiently stated in the opinion. The plaintiff requested the court to give the following written charges (1) "It is not true that one who deals with a general agent is bound to know the extent of his authority; but if the plaintiffs show that John Brady was Mrs. Gibson's general agent in building the opera-house, they would have a right to deal with him in regard to matters connected with the opera-house, without inquiring the exact extent of his authority." (2) "When one without objection suffers another to do acts which proceed upon the ground of authority from him, or by his conduct adopts and sanctions such acts after they are done, he will be bound thereby, although no previous authority exists. If he has justified the belief of a third party that the person assuming to be his agent was authorized to do what was done, he is estopped from denying it." The court gave each of these charges, and the defendant separately excepted thereto. The defendant then requested the court to give the following written charges and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe the evidence, they must find for the defendant." (2) "The court charges the jury that the evidence in this case is not sufficient to establish the general agency of John G. Brady for the defendant." (3) "The court charges the jury that there is no evidence in this case that John G. Brady was the general agent of Mrs. Gibson." (4) "The court charges the jury that, if they believe the evidence, Mrs. Gibson, the defendant, cannot be made to pay for the goods ordered by G. W. Allen from the J. Snow Hardware Co." There was judgment for the plaintiff, and the defendant brings this appeal, and assigns the various rulings of the court as error.

Tipton Bradford and Foster & Oliver, for appellant.

Foster & Jones, for appellee.

MCCLELLAN J.

This action is prosecuted by the J. Snow Hardware Company against Mrs. Gibson for the price or value of materials alleged to have been supplied to her to be used, and which were used, in the construction of an opera-house in the city of Tuscaloosa. Several witnesses testified that the items of the account were all used in the erection of the house, while one witness for the defendant, John Brady, who was the architect, and superintended the erection, deposed that "the account [sued on] is not correct, as there are several overcharges and charges for material that never went into the construction of the opera-house," etc.; going on to specify certain material and articles charged on the account which were not received for or used in the building. We have nothing to do with the weight of the evidence on the respective sides of this issue. Suffice it for us that there was some evidence upon either hand, thus making the question one for the jury. Going to this issue, the plaintiff was allowed to prove the size of the house, the value or amount of material necessary to its construction, and the value of the labor put upon it, against defendant's objection. This evidence would probably tend to induce the mind of a layman to the conclusion that all the material charged for was supplied, since that amount of material, or even more, was needed in the building. Hence we cannot affirm that, if the ruling of the court was erroneous, it involved no injury to the defendant. That it was erroneous is, we think, clear. We are unable to see how the fact that more material than plaintiff claims to have sold could have been used in the construction of the opera-house can have any legitimate tendency to prove that all the material charged for and specified in the account sued on was in truth sold and delivered to the defendant, and used in the building. This would be to prove a sale by evidence of the vendee's necessities, or his ability to utilize the thing alleged to have been sold. The testimony ought to have been excluded.

2. The inquiry of final importance in the case appears to be whether, in legal contemplation, John Brady was the agent of the defendant in the purchase of the materials which went into the building of the opera-house. There is no direct evidence that he was, since his own declaration to that effect cannot, standing alone, be looked to. But the evidence on the part of the plaintiff goes to show that it had been selling goods to Brady for his mother, Mrs. Gibson "ever since it had been in business, and that she had always paid for goods so sold." It was in evidence also that Brady had prepared the plans and specifications for the opera-house; that he was superintending its erection, seeing that the plans were executed, and the specifications complied with, and in some instances changing the same; and that he was constantly about the building supervising the work, etc. It also appeared upon one aspect of the testimony that at the commencement of the building, before, indeed, the work had been begun, he directed the plaintiff to let Allen, the contractor, have whatever was needed in the erection of the opera-house, and told the company's officers that his mother would pay for material so furnished; and that upon this direction and assurance the company, beginning about December 1, 1888, supplied between that time and March 18, 1889, the goods set out in the account sued on; that all these goods were charged to Mrs. Gibson; that on January 1, 1889, when the account amounted to about $375, a statement of it, showing that the credit was given to her, and the charge made against her, was presented to Mrs. Gibson for payment, paid by her without objection, and the statement kept by her, and produced on the trial. It further appears from plaintiff's evidence that on March 4, 1889, Mrs. Gibson had two accounts on its books, one known as the "opera-house account," and the other as her "individual account," the latter being for less than $20; and that on that date she paid plaintiff the sum of $100, with direction to satisfy the individual indebtedness, and apply the balance to the payment of the opera-house account. Then, too, it appeared that she was much about the opera-house during the time plaintiff was delivering the material there, and had in consequence abundant opportunity to know that the company was supplying such material, and that she received the benefit of the material in the erection of the opera-house. Now, these facts-the previous dealings by her with the plaintiff through Brady as her agent, Brady's connection with the building of the opera-house, her frequent presence there duriug these transactions, the payments by her on plaintiff's account for the materials furnished, with full knowledge that that account was made out against her, and without, at least in the first and main instance, any objection-were all proper to go to the jury as evidence of the agency of Brady; that the goods and wares, so supplied, went into the construction...