Oakdale Land Co. v. Fielding

• Decision Date: 02 March 1960
• Docket Number: 6 Div. 729
• Citation: 118 So.2d 608,40 Ala.App. 601
• Parties: OAKDALE LAND COMPANY, Inc. v. James Lee FIELDING, as Administrator.
• Court: Alabama Court of Appeals

Page 608

118 So.2d 608

40 Ala.App. 601

OAKDALE LAND COMPANY, Inc. v. James Lee FIELDING, as Administrator.

6 Div. 729.

Court of Appeals of Alabama.

March 2, 1960.

Frank B. Parsons, Fairfield, for appellant.

Edw. H. Saunders, Bessemer, for appellee.

CATES, Judge.

Oakdale Land Company, Inc., a corporation, which was engaged in the business (at Brighton, Alabama) of owning and operating a public cemetery, has appealed from a judgment on a verdict for $50 damages on an action brought by James Fielding in his capacity as administrator of the estate of his grandmother, Cooper Williams. The vehicle for the action below consisted of common counts, i. e., 2A for money had and received, and 3A for account. Oakdale made no motion for a new trial.

The tendencies of the permissible inferences from the evidence were:

In 1945, Cooper Williams's husband, Reese Williams, died, and she went to Oakdale Cemetery to see about a grave. She there talked to Julius Berry and paid him $45. Berry gave her a receipt which read:

'Paid in Full 3/29 1945

Received * * *

Forty-five 0/100 Dollars

for two Grave in Oakdale

$45.00 (Signature) Julius Berry Mgr.'

Reese Williams was then buried in the cemetery in one of the two graves picked out by his widow.

In June, 1958, the widow died, and her grandson went to the cemetery and was told by Jimmy Alexander, the then caretaker, there was nothing that he, Alexander, could do about it (honoring the receipt given by Berry); that Fielding would have to call the president of the cemetery company, C. J. Donald. Fielding then went to Donald's office in the city of Fairfield, where Donald told him that the corporate records failed to show the sale of any lot to Cooper Williams, nor did they reveal the burial of Reese Williams.

Fielding thereupon went back to Alexander at the graveyard and told him he wanted the grave opened any way, that he would pay for it. He thereupon paid Alexander $50 for the grave in which Cooper Williams was then buried.

The second receipt which was signed by Alexander's wife, Ophelia, was executed, 'Oak Dale Cemetery By Ophelia Alexander.'

As presented to us, the most serious question in the case turns on the role of Julius Berry, the 1945 caretaker of the cemetery. Undisputedly he is the one who took the money first paid for the twice paid for grave. For this he issued a receipt, reading in part, 'Paid in Full * * * for two Grave in Oakdale Julius Berry Mgr.'

C. J. Donald, President of Oakdale, testified Berry then worked for the corporation, drew no salary, was 'sexton,' ¹ and his duties were to open graves, close them, 'and collect for them.' Berry was not authorized 'to sell a grave that was not to be opened at that time.' The lowest price of a grave in 1945 was $15. The charge for 'opening'--presumably digging--a grave then was $15. The testimony is not clear as to whether or not another $15 was charged to close the grave.

Donald further testified the records of the corporation were kept in the office of the Donald Real Estate Company. Donald never knew of Berry's 'selling a grave that was not to be opened right then.' 'He had no authority to sell anything except the individual graves,' but not 'graves to be opened in the future.'

In 1958, when Fielding's grandmother was buried, Donald testified Jimmy Alexander and his wife worked for Oakdale. The evidence runs:

'Q. Was it part of her duties to write receipts for graves out there.

'A. When they were opened, was Sexton there and she had authority to collect and write a receipt for the grave when it was opened. That's all.'

Ophelia Alexander gave Fielding a receipt for $50 in the name of 'Oak Dale Cemetery.'

Ernest Poole, an undertaker, first came in contact with Julius Berry at the cemetery about 1938. Poole saw Berry (at a time or times unspecified) selling graves at the cemetery and in charge of the men working there. Poole had bought graves from him from 1938 to 1945.

Poole was present when, 'Cooper Williams entered into an agreement with Julius Berry to purchase two graves, one to contain the remains of * * * Reese Williams, and another for her * * *.' Poole buried Reese Williams. On being shown a photograph of a slab with a marker inscribed 'Reese Williams,' etc., and a few inches of coping (seemingly of Portland Cement poured at the same time as the slab) along the edge of the abutting grave (presumably the subject of the two payments), Poole identified it as the site of Reese Williams's burial and that he first remembered seeing the slab 'about 1947.' Another photograph was admitted under Poole's testimony, this one shows both the slab under which Reese's remains rest and the coping enclosed space where Cooper was later interred.

Poole went on to state that at Reese's death Berry was in charge at the cemetery and that he had never seen Dr. Donald there.

Lillie B. Hall, who lived across the street from the Williamses, was also present when Cooper went to the graveyard to see about burying Reese. She described the transaction:

'Cooper Williams asked Julius Berry how much were the graves? He told her '$25 for one and so she said, '$25.00?' She said, 'Lord, I don't have that much money.'

'And he said, 'But, I tell you, if you get two graves', he said, 'if you gets two graves I'll let you have them for $45.' She say 'What you say about that?' She calls me 'Belle' for a nickname. She say, 'What you say about it, Belle?' I say, 'If I was you I'd get it and get the two.' So, she said, 'Well, I'll takes the two.' So she pays him $45 and he wrote her a receipt.'

She testified that she went to the funeral and that Reese was buried in one of the graves Cooper had picked out.

'* * * Now, was there a wall put around that on the--around the other grave, the open grave at the same time, or not?

'A. They put the slab on and put them a pen around the other grave, there, at the same time.

'Q. And that was in six or seven weeks after Reese was buried there?

* * *

* * *

'A. Yes, sir.'

Fielding's testimony as to his grandmother's dealings at the cemetery with Berry is of the same effect. He also produced a receipt dated June 8, 1945, given by Berry to his grandmother for $30, 'On Grave Slab.'

Thus, to summarize the evidence tending to show Berry as authorized to sell graves not only for immediate burial but generally, it might be point out that the business of the corporation was apparently confined to the operation of the cemetery; that cemetery lots were in the nature of goods for sale (the business of the corporation being of a nature similar to that of a wasting asset company). Julius Berry was undoubtedly the ranking representative of the corporation ordinarily present during the usual hours at which it might be expected that business would be transacted. The cemetery was located in Brighton, Alabama. The president appears to have conducted a real estate business in the city of Fairfield, at which the formal records of the corporation were kept. Berry was seen not only directing workmen, but also in selling lots.

Viewed most favorably. Oakdale's putting Berry in charge could bring his status to that of an agent held out, i. e., a kind of general agent. Restatement, Second, Agency, under liability of principal to third persons on contracts, at § 195, says:

'An undisclosed principal who entrusts an agent with the management of his business is subject to liability to third persons with whom the agent enters into transactions usual in such businesses and on the principal's account, although contrary to the directions of the principal.'

That a corporation's liability is the same as a natural person's is shown in C. B. Snyder Realty Co. v. National Newark & Essex Banking Co., 14 N.J. 146, 101 A.2d 544, 548:

'Corporations, like natural persons, are bound only by the acts and contracts of their agents done and made within the scope of their authority. [Citing authority.] * * * a corporation is bound by the act of an officer or agent to the extent the power to do that act has been conferred upon him: (1) expressly * * * (2) by implication * * * or (3) where the act is within the apparent powers which the corporation has caused those with whom its officers or agents have dealt to believe it has conferred upon them. [Citing authority and quoting from] American Well Works v. Royal Indemnity Co., 109 N.J.L. 104, 108, 160 A. 560, 562 (E. & A. 1932) as follows:

"The rule is that the principal is bound by the acts of his agent within the apparent authority which he knowingly permits the agent to assume, or which he holds the agent out to the public as possessing. The question in every case depending upon the apparent authority of the agent is whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question; and when * * * the party, relying upon such apparent authority, presents evidence which would justify a finding in his favor, he is entitled to have the question submitted to the jury. * * *" In Goldfield v. Brewbaker Motors, Inc., 36 Ala.App. 152, 54 So.2d 797, 800, Carr, P. J., said:

'In the case of Patterson v. Williams, 206 Ala. 527, 91 So. 315, the Supreme Court observed: 'An agent's authority is measured by the powers which his principal has caused or permitted him to 'seem to possess.' As to third persons without knowledge or notice, it is not limited to the powers actually conferred and those to be implied as flowing therefrom, but includes as well the apparent powers which the principal by reason of his conduct is estopped to deny.'

* * *

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'A careful study and consideration of the evidence in the instant case lead to the conclusion that different inferences can be reasonably drawn from the testimony on the matter of agency. Disputed factual issues being thereby presented,...