Standard Motorcar Co. v. McMahon, 1 Div. 92

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 82 So. 188,203 Ala. 158
• Parties: STANDARD MOTORCAR CO. v. McMAHON.
• Decision Date: 10 April 1919
• Docket Number: 1 Div. 92

82 So. 188

203 Ala. 158

STANDARD MOTORCAR CO.
v.
McMAHON.

1 Div. 92

Supreme Court of Alabama

April 10, 1919

Rehearing Denied May 22, 1919

Appeal from Circuit Court, Mobile County; Norville R. Leigh, Jr., Judge.

Action by Grace St. John McMahon against the Standard Motorcar Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Affirmed. [82 So. 189]

Gordon & Edington, of Mobile, for appellant.

Harry T. Smith & Caffey and Thornton & Frazier, all of Mobile, for appellee.

THOMAS, J.

The third count was in detinue on which there was recovery of specific chattels.

The first assignment of error is on the overruling of defendant's objection to the following question to the witness Coffin: "I wish you would state whether or not in that conversation between Mr. Wood and Mr. McMahon in reference to the sale of this car Mr. Wood represented this electric would run eighty miles on a charge"--to which this reply was made: "Yes, sir; he made that statement." The ground of objection was that the reply thereto would be irrelevant, immaterial, incompetent, and misleading evidence. This objection is, however, rested on the insistence of defendant that any statement Wood might have made in "conversation with disinterested parties would be immaterial to the question of fraud" in the sale of the electric car by defendant's agent; and in support of the position is cited Bunzel v. Maas & Schwarz, 116 Ala. 68, 80, 22 So. 568; Robinson v. Garth, 6 Ala. 204, 211, 41 Am.Dec. 47. It will be noted of Bunzel's Case that no question of agency or fraud by an agent was involved. Mr. Chief Justice Brickell said:

"The plaintiff was not present, and the direct assertion or admission by Marks of having an interest in the notes could not affect the plaintiff whose rights were then fixed."

In Robinson v. Garth, supra, the action was by the sheriff to recover the difference between the sum bid by defendant for tracts of land sold under execution and the price for which said lands were subsequently sold on defendant's refusal to complete the first purchase. Held, that the memorandum of the original sale made by plaintiff as sheriff is not competent evidence to establish the fact that such sale was made by that official. These cases are not applicable to the instant facts.

Defendant's manager admitted that he had placed the electric car with Wood for sale by him as agent on a commission basis. Plaintiff's evidence tended to show that about a week before the car was demonstrated to her said Wood approached Otis McMahon (her son) in the presence of Coffin, and in the ensuing conversation about the sale of the car represented that it would make 80 miles on a single charge of its electric battery; that on that day McMahon had a conversation with the manager of defendant company (Kearns) in the course of which McMahon stated, "Wood said that car will go eighty miles on a charge," and Kearns replied, "Wood knows what he is talking about; he is the electric man," and further said that he (Kearns) did not know anything about electrics. Witness McMahon testified that he knew Kearns was at the time the manager in charge of the defendant company; and witness repeated to his mother what Kearns said of Wood's representation. This first approach of Wood to witness about the car in Coffin's presence was about a week prior to the time the former brought the car to plaintiff's house and demonstrated it to plaintiff and her son.

While there was evidence tending to show that Otis McMahon was not the agent of his mother in the consummation of the purchase, yet it was through him that negotiations were initiated and proceeded, and he was constantly with his mother during such negotiations, advising with reference thereto, to the time of the purchase and delivery of the car. Of this fact Wood testified, "I had a transaction with them (meaning Mrs. McMahon and Otis McMahon) relative to the sale of an Ohio Electric," the car in question, that Otis McMahon was constantly conferring with his mother in reference to the terms of the sale, and that "I was selling the automobile to both of them, I supposed." A reasonable inference that may be drawn from this and other evidence, showing that the car was placed by defendant with Wood for sale, was that the representations thereof made by Wood to Otis McMahon in the presence of Coffin, in the preliminary stage of the negotiations, were in pursuance of Wood's agency and authority to sell the car. When the conversation of Wood with Otis McMahon, in the presence of Coffin, was repeated to the manager of defendant company, that official affirmed the fact that Wood knew what he was talking about, disclaimed knowledge on his part of the mechanism of electric automobiles, and made no denial that the car in question would stand such represented or guaranteed test. When this testimony is taken in connection with the [82 So. 190] representation of Wood to Otis McMahon, in Coffin's presence, and its repetition to plaintiff, the same became relevant and was competent as tending to show authority in Wood to make the representations that were material inducements to the purchase, and one of the controverted issues upon the count in detinue. It tended, further, to show a ratification of the statement by the manager for the corporation, though the statement was not originally made in the presence of that official or of the plaintiff, but that such agent was held out by defendant company for the purpose of selling the car. Home Protection, etc., v. Whidden, 103 Ala. 203, 206, 15 So. 567; Belmont Coal & Rd. Co. v. Smith, 74 Ala. 206, 212; Meador & Son v. Standard Oil Co., 196 Ala. 365, 367, 72 So. 34; ...