Jones v. Journey

• Decision Date: 23 November 1911
• Citation: 2 Ala.App. 488,56 So. 850
• Parties: JONES v. JOURNEY.
• Court: Alabama Court of Appeals

56 So. 850

2 Ala.App. 488

JONES v. JOURNEY.

Court of Appeals of Alabama

November 23, 1911

Appeal from Circuit Court, Calhoun County; John Pelham, Judge.

Detinue by Charlotte Jones against John W. Journey for one horse. Judgment for the defendant, and plaintiff appeals. Affirmed.

Niel P. Sterne, for appellant.

Lapsley & Arnold, for appellee.

WALKER P.J.

In connection with independent evidence tending to show that the person who sold to the defendant the horse sued for was authorized by the plaintiff to trade it, it was competent to prove the acts or declarations of such person in the performance of the agency. Robinson &amp Co. et al. v. Greene, 148 Ala. 434, 43 So. 797; Martin, Dumee & Co. v. Brown, Shipley & Co., 75 Ala 447; Jones on Evidence, § 255. If the plaintiff wished to raise the question that such declarations of the alleged agent could not be considered as proof of the fact of agency he should have asked instructions defining the purpose for which the evidence could be considered by the jury.

The assignment of error based on the exception to the action of the court in sustaining defendant's objection to the question to the witness Henry Carr on cross-examination cannot be sustained. The question was so framed as to call for proof of a suggestion made by McKinley to the witness to buy the horse from its owner before the agency was created. That being so, the answer to the question might have had no bearing on any issue in the case.

Besides, it is not made to appear how the plaintiff could have been prejudiced by the ruling. If the answer had been that McKinley made such a suggestion after he was authorized to sell or trade the horse, that fact would not have tended to support the contention of the plaintiff that McKinley was without authority, as an agent of the plaintiff, to sell or trade the horse.

The defense was that the defendant acquired title to the horse sued for by a trade with the plaintiff's authorized agent. Evidence that the trade was in good faith and for full value would tend to sustain the defense. As part of the proof to this end, it was not improper to admit evidence of the value of the animal given in exchange.

The inquiry as to whether the defendant assumed or supposed that the person with whom he traded was the owner of the horse, or was acting as the agent of another, was in reference to a wholly immaterial matter. Whether he understood the fact to be one way or the other, he acquired a good title, if the person he traded with in good faith was either the owner or the authorized agent of the owner.

The plaintiff's witness L. G. Jones testified that McKinley never hired the horse in question. Proof that he claimed that he rented some mules to McKinley at the time he rented this horse to him would tend to contradict that testimony. An inquiry as to his making such claim was, in part at least, the purport of a question asked the plaintiff on cross-examination. It was not error to overrule the objection to that question.

It was not made to appear...