Wooten v. Federal Discount Co.
| Decision Date | 15 April 1913 |
| Citation | 62 So. 263,7 Ala.App. 351 |
| Parties | WOOTEN v. FEDERAL DISCOUNT CO. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Coffee County; H.A. Pearce, Judge.
Action by the Federal Discount Company against J.S. Wooten. From a judgment for plaintiff, defendant appeals. Affirmed.
J.A. Carnley, of Elba, for appellant.
W.W. Sanders, of Elba, for appellee.
The plaintiff (appellee here) sued in the court below to recover on three acceptances alleged to have been accepted by the defendant in writing and indorsed to the plaintiff before maturity. The defendant filed a sworn plea of non est factum and the case was tried on the issue tendered by this plea and resulted in a verdict and judgment for the plaintiff.
The evidence showed that the defendant was engaged in a mercantile business located in a town about three miles from his place of residence in the country, and that his son J.L Wooten, stayed in the store and looked after the interests of his father there. The defendant only visited the store at irregular intervals two or three times each week. The acceptances sued on were three of a series of six bills of exchange given for goods ordered by the son J.L. Wooten, for and shipped to the father, J.S. Wooten, the defendant, and used in the business of the father at his store by the son. J.L. Wooten signed and accepted the six bills of exchange by indorsing the name of his father, who owned the business, on them.
It was the defendant's contention on the trial that his son was without authority to sign his name to the acceptances and that he was in no way bound thereby. It is insisted here that, as the defendant's plea of non est factum placed the burden of proving the execution of the acceptances made the foundation of the suit on the plaintiff, the court improperly admitted these instruments in evidence for the reason that their execution by the defendant, or any one authorized by him, was not proven.
The bill of exceptions shows that, before the plaintiff was permitted to introduce in evidence the acceptances made the foundation of the suit, it had offered and read the depositions of two of the plaintiff's witnesses, the answers to the interrogatories propounded to the defendant as the adverse party, and had examined as a witness the son of the defendant.
It was shown by this evidence introduced by the plaintiff that the son, J.L. Wooten, who signed his father's name to the acceptance, was in charge of the defendant's business in the absence of the father, and conducted it for the defendant, his father, and that the goods purchased were shipped to the defendant and put in his store and some of them sold in the course of the defendant's business, and for the defendant's use and benefit, by the son, who was intrusted with the management of the business by the defendant. It was also shown that the son in the course of the conduct and management of the business drew checks in his father's name on his bank account to pay the bills for the store; and the son in his testimony stated that he signed the acceptances sued upon in his father's name "in carrying on my father's business." Both the defendant and his son stated that the son was only a clerk for his father and had no general authority to purchase goods for the store, but it was shown by the testimony of each of these witnesses that on occasions the son did buy goods in the course of his conduct and management of the business. The first three of the acceptances falling due were paid, and the son testified on this subject, "My father paid the first three of these acceptances when they fell due." It otherwise appeared from the evidence that the son had drawn checks in his father's name to make these payments. One of the plaintiff's witnesses whose testimony was taken by deposition stated that three of the acceptances were paid by the defendant respectively as they fell due, and that on each of these occasions the acceptance was returned to the defendant through the mail, stamped "paid," and that the company selling the goods to the defendant had received several letters from the defendant after receipt of the goods, requesting that certain exchanges be made in the goods purchased. The acceptances, we think were properly admitted in evidence under this state of the proof as to...
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