Langham v. Jackson

• Decision Date: 12 June 1924
• Docket Number: 1 Div. 315.
• Citation: 100 So. 757,211 Ala. 416
• Parties: LANGHAM ET AL. v. JACKSON, SUPERINTENDENT OF BANKS.
• Court: Alabama Supreme Court

100 So. 757

211 Ala. 416

LANGHAM ET AL. v. JACKSON, SUPERINTENDENT OF BANKS.

1 Div. 315.

Supreme Court of Alabama

June 12, 1924

Appeal from Circuit Court, Baldwin County; John D. Leigh, Judge.

Action on promissory notes by A. E. Jackson, as Superintendent of Banks, liquidating the affairs of the Bank of Bay Minette against John Langham and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Jas. H Webb, of Mobile, Stone & Stone, of Bay Minette, and Leon G Brooks, of Brewton, for appellants.

Gordon & Edington, of Mobile, and Charles Hall, of Bay Minette, for appellee.

THOMAS J.

The court gave the general affirmative charge at the request of the plaintiff. The instant assignments of error relate to the action of the court in refusing to allow in evidence testimony as to the acts, conduct, and declarations of William B. Powell relating to the taking by the Bank of Bay Minette of the note of defendants and one C. B. Thompson. The suit is by the superintendent of banks on the indorsement by defendants of the note to said bank by said Thompson.

The real defense by the indorsers is that the indorsements were conditional; that the note would be also indorsed by W. D. Owens, Jr.; and that it was not so indorsed before it was taken and used by the bank with knowledge of the character of defendants' respective conditional indorsements.

The question of agency and how the same may be shown, where that fact rests in parol, has been the subject of frequent discussion by the courts. When the fact of agency rests in parol, or is to be inferred from the conduct of the principal, and there is evidence tending to show agency, the acts and declarations of the alleged agent become admissible to enable the jury to determine whether or not there was agency. Roberts & Sons v. Williams, 198 Ala. 290, 73 So. 502; Lytle & Co. v. Bank of Dothan, 121 Ala. 215, 26 So. 6; Gambill v. Fuqua, 148 Ala. 448, 42 So. 735; Reynolds v. Collins, 78 Ala. 94; Martin v. Brown, 75 Ala. 442; Gimon v. Terrell, 38 Ala. 208; Buist v. Guice, 96 Ala. 255, 11 So. 280; 2 C.J. p. 945 et seq.; 38 Cyc. 2079.

It is further declared by this court that, where it is shown that the actor has been held out by the principal as being his agent, or as possessing the authority assumed by such agent within the scope of the principal's business, the rule of apparent authority can be invoked by one who has been misled thereby to his detriment. Pacific Mut. Life Ins. Co. v. Hayes, 202 Ala. 450, 453, 80 So. 834; Roberts & Sons v. Williams, supra; Fulton v. Sword Med. Co., 145 Ala. 331, 334, 40 So. 393; Patterson v. Neal, 135 Ala. 477, 482, 33 So. 39; Robinson & Co. v. Greene, 148 Ala. 434, 43 So. 797; Syndicate Ins. Co. v. Catchings, 104 Ala. 176, 16 So. 46; 1 Am. & Eng. Encyc. of Law (2d Ed.) p. 990. A principal who would avail himself of a contract made by another for him, whether by an appointment or as a gratuitous agent, is bound by the representations made and methods and means employed by such agent to effectuate the contract. Pacific Mut. Life Ins. Co. v. Hayes, supra; Roberts & Sons v. Williams, 198 Ala. 290, 292, 73 So. 502; Capital Security Co. v. Owen, 196 Ala. 385, 387, 72 So. 8; Doran & Co. v. Gilreath, 196 Ala. 377, 72 So. 94; Williamson v. Tyson, 105 Ala. 644, 17 So. 336.

There was error in excluding the evidence sought to be evoked by the questions sought to be propounded to Mr. Woodson, and on which assignments of error from one to five, inclusive, are based. The agency and interest of Mr. Powell in the premises were subject of a proper cross-examination, and this was denied.

The questions sought to be propounded to Mr. Woodson were:

"Now, before he brought these notes back to you, and they were delivered to the bank, didn't you receive a phone call from one of the defendants, telling you about the circumstances under which these indorsements were obtained and

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