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the railroad company recognized plaintiff's title to the land, by offering to purchase a part of the premises from her, unless the authority of such officer was first es

tablished, or his acts were shown to have been afterwards ratified by the company. 2. SAME_COLOR OF TITLE-EMINENT Domain.

Proceedings for the condemnation of the land in controversy, instituted by defendant company in the commissioners' court, even though invalid for irregularities of procedure, constituted color of title, under which the company could adversely hold the premises." Appeal from circuit court, Russell county; JESSE M. CARMICHAEL, Judge.

Action brought by Mrs. Mary H. Cogsbill against the appellant, a domestic corporation, to recover the possession of a small strip of land, with damages for its detention. The defendant pleaded not guilty, and the statute of limitations of 10 and 20 years, and issue was joined on these pleas. On the trial the plaintiff offered no written evidence of title, but proved her continuous. occupation and possession since 1838. During her examination as witness plaintiff's counsel asked her "whether the defendant, or any officer of the company, ever proposed to her to buy any of the premises on which she lived, and which was at the time inclosed;" and she answered "that Mr. Clark, the superintendent of defendant's road, offered to pay her $50 for that portion of said land lying on the north side of her fence, and south of the railroad track, but that she refused the offer.” To this question and answer, each, the defendant objected, and duly excepted upon its allowance and admission. One section of defendant's charter gave it power to acquire the right of way for its road, by proceedings instituted before a justice of the peace, which were required to be returned to the commissioners' court of the county for approval and contirmation. Under this statutory power, proceedings were instituted by the defendant in December, 1852, for the condemnation of the right of way through the lands now claimed by the plaintiff; and these proceedings were returned to the commissioners' court, by which they were ratified and confirmed. A certified copy of these proceedings was offered in evidence by the defendant, and admitted without objection. The plaintiff was not a party to the proceedings, and testified that she had no notice of them. The defendant proved the location and construction of its road through the strip of land thus condemned, and also its continuous and uninterrupted use of the premises for railroad purposes until the commencement of this suit. On these facts the court charged the jury as follows: “The jury may look at any act of the defendant corporation done by its officers during the ten-years claim of adverse possession, and shown by proof, if such be the case, to show that they recognized plaintiff's title; and if from such facts they believe that the railroad did recognize her title, then the defendant cannot set up adverse possession against her.” The defendant excepted to this charge, and requested the court to instruct the jury “that they must find for the defendant if they believed the evidence.” The court refused this charge, and the defendant thereupon excepted. The admissio! of the evidence objected to, and the giving and the refusal to give the charges asked, are now assigned here as error.

Norman & Son, for appellant.

SOMERVILLE, J It was not permissible to prove that any of the officers of the railroad company recognized the title of the plaintiff to the land in controversy by offering to purchase a part of the premises from her unless the authority of such officer was first established, or was shown to have been after, wards ratified by the corporation company. The company would not be bound, nor should its legal rights be prejudiced, by unauthorized acts or dec. larations of its officers beyond the scope of their agency. Stanley v. Coal Co.,

1 As to what is sufficient color of title on which to base a claim by adverse possession, see Whittlesey v. Hoppenyan, (Wis.) 39 N. W. Rep. 355, and note; Baldwin v. Ratcliff, (Ill.) 17 N. E. Rep. 794, and note; Stout v. Tall, (Tex.) 9 S. W. Rep. 329.

83 Ala. 260, 4 South. Rep. 34. For the error of the circuit court in admitting evidence of this objectionable character the judgment must be reversed. The condemnation proceedings in the commissioners' court of Russell county, even though invalid for irregularities of procedure, certainly constituted color of title under which the defendant company adversely held the premises in controversy for more than 10 years. This possession of the land was not only continuous, but was asserted by a use suitable to its nature and adaptability, and the purposes for which it had originally been sought to be condemned. The court, in our judgment, erred in refusing to give the general affirmative charge in favor of the defendant.

Reversed and remanded.


(Supreme Court of Alabama. December 19, 1888.) 1. PRINCIPAL AND AGENT-AUTHORITY OF AGENT-RATIFICATION.

An agent placed in charge of a retail store to conduct his principal's mercantile business, with money deposited to his credit, which, together with that taken in from sales, he is to use to replenish the stock, but with instructions not to purchase on credit, cannot bind his principal by a purchase of goods on credit, though made from persons ignorant of the limitation of his authority, unless they show that the principal, by ratification of or acquiescence in previous acts of the agent, had extended his authority, and led them to believe that in making the purchase

the agent was acting within his powers. 2. SAME-EVIDENCE OF AGENCY-QUESTION FOR JURY.

The authority having been conferred on the agent in November, 1881, when the principal was about to leave home for a few months, and there being evidence to show its revocation at his return in June, 1882, and the purchase of goods, which was the first transaction of plaintiffs with the agent, not having been made until 1883, the question should be left to the jury to determine whether the plaintiffs

were justified in believing that the authority continued. 3. SAME-LIABILITY OF PRINCIPAL-NEGLIGENCE.

Neglect of the principal to inform himself as to the manner in which the agent conducts his business, and to see that his instructions are obeyed, does not constitute ground of liability, unless it proximately contributed to the loss by inducing

plaintiffs to believe the agent had authority. 4. SAME-KNOWLEDGE OF AGENT—NOTICE.

Knowledge of an agent is not constructive notice to his principal, unless acquired after the agency was created.?

Appeal from circuit court, Lawrence county; H. C. SPEAKE, Judge.

Action by McGuire, Scroggins & Co. against Joseph Wheeler, to recover for goods sold. Verdict was rendered for plaintiffs, and defendant appeals.

Joseph Wheeler, for appellant. Simpson & Jones and T. N. McClellan, for appellees.

CLOPTON, J. Appellees seek to recover the price of certain goods, which they allege were sold and delivered to appellant through T. A. Tatham, as his agent. The agency was not disputed, but defendant contends that Tatham was in his employ merely as a clerk, and was not authorized to purchase goods on a credit and bind him. The plaintiffs contend that Tatham was a general agent, having authority to transact all of defendant's mercantile

"Respecting the general authority of an agent to bind his principal, see Jenkins v. Funk, 33 Fed. Rep. 915, and cases cited; Heilbronn v. McAleenan, i N. Y. Supp. 875; Yates v. Yates, (Fla.) 3 South. Rep. 821, and note.

2 As to how far and when knowledge of an agent is notice to the principal, see Satterfield v. Malone, 35 Fed. Rep. 445; Bunton v. Palm, (Tex.) 9 S. W. Rep. 182, and note; Baldwin v. Railway Co., (Iowa,) 39 N. W. Rep. 507; Cotton-Mills v. Orchard Mills, (Mass.) 17 N. E. Rep. 496, and note; Harvester Co. v. Miller, (Mich.) 40 N. W. Rep. 429.

business, or was held out by defendant, or permitted to hold himself out, as such, so as to justify the belief that he was clothed with the powers of a general agent. The question mainly controverted by the parties relates to the character of the agency and the extent of his authority.

The general rule is that one who deals with an agent is bound to ascertain the nature and extent of his authority, but in the application of the rule a distinction is observed between general and special agencies. The power to do everything necessary to its accomplishment may be included in a particular agency, so that private instructions as to the particular mode of execution, which are not intended to be communicated and are not communicated to the party with whom the agent may deal, will not be regarded as limitations on his power. “But with this qualification a special authority must be strictly pursued. A general agent nay exceed his express authority, and the principal, nevertheless, be bound. The scope and character of the business which he is empowered to transact is, as to third persons, the extent and measure of his authority. By his appointment the principal is regarded as saying to the public that he has the authority to transact the business in the usual and customary modes. Secret limitations on his power, or private instructions as to the mode of transacting the business, will not affect the rights of third persons who have no notice of such limitations or instructions. When a general agent transacts the business intrusted to him within the usual and ordinary scope of such business, he acts within the extent of his authority, and the principal is bound, provided the party dealing with the agent acts in good faith, and is not guilty of negligence which proximately contributes to the loss. Coffin Co. v. Stokes, 78 Ala. 372. Third persons, dealing with a person as a general agent, are not acquitted of all duty to inquire and ascertain the character and extent of his agencụ; but if on inquiry ascertained to be general, actually or apparently, they are not bound to inquire whether there are secret limitations or private instructions, unless they have knowledge of facts which should put them on such inquiry. As to these issues, the burden is on the plaintiffs to establish by proof that Tatham was the general agent of defendant, or that the latter, by acts, conduct, or negligence, justified the belief that he had authority to purchase goods on credit for the store. If these issues be found in favor of plaintiffs, no subsequent misconduct of the agent, misappropriating the goods or otherwise, will affect their rights.

After having given a general charge, which in the main is in accord with the foregoing principles, the court instructed the jury, at the instance of the plaintiffs, that if defendant employed Tatham, and put him in charge of his retail store at Wheeler's Station, to conduct his mercantile business, and placed money to his credit in Louisville, Ky., and Nashville, Tenn., and authorized him to use this money, and also that taken in from cash sales, to replenish the stock, and instructed him not to purchase on credit, he was, as to innocent third persons, the general agent of defendant in that business, and had authority to do whatever was usual or customary in conducting the same; and if plaintiffs sold to Tatham, as such agent, the goods for the price of which this suit is brought, their verdict must be for plaintiffs, unless they had notice that Tatham's authority was limited to purchases for cash. In considering the correctness of the instruction, any evidence, if there be such, tending to show that Tatham was apparently clothed with the powers of a general agent, cannot be taken into consideration. The proposition of the charge is that as to third persons the facts recited therein, of themselves, without the aid of extrinsic facts and circumstances, constituted Tatham a general agent, possessing authority to purchase goods on credit. In other words, he was a general agent as to plaintiffs, though they may have known the terms of his employment, including the deposit of money with which to purchase goods, except the instruction not to purchase on credit. The most general powers that may be conferred on an agent are necessarily limited to the business or purpose for which the agency is created. The terms of the employment of Tatham,—"in charge of his retail store at Wheeler's Station to conduct his mercantile business,”-in connection with the limitations on his authority to purchase, limit his powers as a general agent to the transaction of the local mercantile business of defendant. In the matter of buying goods, his power was expressly restricted to the use of money specially deposited for that purpose, and to cash receipts. In appointing Tatham his agent, defendant withheld power to buy and pledge his credit under any circumstances. By the terms of his commission, Tatham may be regarded a general agent to conduct the local business of the store, with special powers to purchase. To construe it otherwise would be to establish the rule that a merchant who furnishes his clerk with funds to purchase goods and make immediate payment clothes him with power to buy on his principal's credit, and that persons dealing with him are relieved of the obligation to ascertain the nature and extent of his warrant of anthority. This would press too far the application of the do trine of general ilgency. Jaques v. Todd, 3 Wend. 83; Clealand v. Walker, 11 Ala. 1058; 1 Amer. Lead. Cas. 679; 1 Pars. Cont. 43.

When an express authority is given, the extent thereof must be ascertained. from its terms, and another or different authority cannot be implied, unless facts are shown from which such other authority may be presumed, or arises by implication of law. Therefore proof of facts or circumstances from which the authority is presumed or arises, by implication of law,--an appearance of authority, caused, not by the agent himself, but by the defendant,-is essential to his liability for Tatham's acts not within the scope of his commission.. In such case, it is incumbent upon the plaintiff to prove that defendant, by ratification, assent, or acquiescence in previous acts, held out Tatham as clothed in the character in which he assumed to act, which fairly led the plain-titfs to believe that more extensive powers had in fact been given than were conferred by the terms of the appointment. On this question, all the circumstances of the transaction, the previous conduct of the defendant, and the usages of the business, may be properly considered. It should, however, beremarked that, in order to bind the defendant by ratification, assent, or acquiescence in prior acts of his agent in excess of the authority actually given, knowledge of the material facts must be brought home to the defendant; and if, in the absence of express authority to bind defendant in the manner in which he is sought to be charged, his liability is rested on previous recognition of similar acts of Tatham as his agent, it is requisite to show that plaintiffs sold the goods to Tatham on the faith of such previous recognition. St. John v. Redmond, 9 Port. (Ala.) 428; Blevins v. Pope, 7 Ala. 371. In this aspect of the case, any evidence is relevant which shows prior similar acts of Tatham, and tends to prove or disprove defendant's knowledge, and plaintiffs' reliance on his recognition of them.

The charge under consideration is objectionable in another respect. The authority, as hypothetically stated therein, was conferred in November, 1881, when the defendant was on the eve of leaving home to be absent for months. There is evidence tending to show that on his return in June, 1882, the authority to purchase was revoked. The transactions with the plaintiffs were in January, February, and March, 1883, and were the first transactions which Tatham bad with plaintiffs as agent of defendant. An authority conferred is always revocable, unless coupled with an interest, or founded on a valuable consideration, and may be revoked expressly, or by act clearly inconsistent with its continuance. When third parties have dealt with an agent clothed with general powers, the agency continues as to them, after revocation, until they have notice thereof. Also the principal may be liable for the acts of the agent, after revocation, to third persons, who never dealt with him previously, if they, in common with the public at large, are justified in believing that such agency existed, and have no notice of its revocation. Claflin v. Lenheim, 66 N. Y. 301; 1 Pars. Cont. 70. On the case as presented by the record, these questions should have been submitted to the jury. They were withdrawn from their consideration by the instruction to find a verdict for the plaintiffs, independent of the evidence in regard to the revocation of the authority of Tatham and notice to plaintiffs.

The court also charged the jury that if the defendant placed Tatham in charge of his retail store with instructions to buy for cash only, it was the duty of defendant to keep himself posted as to the manner in which his agent conducted his business, and to see that his instructions were obeyed; and if he knew the agent was buying on credit, or could have known it by the exercise of ordinary diligence, he is estopped to deny the authority of Tatham to purchase on credit. The rule is stated by Mr. Wharton as follows: “Where a principal conducts his affairs so negligently as to lead third parties to reasonably suppose that his agent has rull powers, then, if the agent exceeds his authority, the principal must bear the loss. It is true that the principal is not chargeable with culpa levissima. He is not chargeable, in other words, with the consequences of those slight negligencies into which good business men are liable to fall. But if he is negligent to an extent beyond what is usual with good business men in his department, and if, in consequence of this negligence, third parties repose trust on the supposed agent, then the loss, if loss accrue, must fall on the principal.” Whart. Ag. § 123. Though mere negligence--mere want of ordinary diligence-may furnish the agent an opportunity of undue assumption of authority, it does not of itself work an estoppel. A principal is not required to distrust his agent, nor to keep a vigilant watch over the manner in which he exercises his authority, and to see that his instructions are obeyed. He may act on the presumption that third parties, dealing with his agent, will not be negligent in ascertaining the extent of his authority as well as the existence of his agency; and negligence, to constitute a ground of liability, must have caused the plaintiffs to repose trust on the authority of Tathan, and the negligence of plaintiff must not have proximately contributed to the loss. The charge exacts of the principal a degree of diligence not required by the law.

Many cases hold that notice to an agent notice to his principal, though acquired before the relation is created, if present in his mind at the time of the particular transaction, and he can communicate it or act upon it without violating a legal or moral duty. It was, however, early settled in this state, that knowledge of an agent, to operate as constructive notice to the principal, must have been acquired after the relation of principal and agent was formed. This rule having been followed ever since, whatever might be our opinion were it an open question, it would not be prudent to disturb it now. Mundine v. Pitts, 14 Ala. 84; McCormick v. Joseph, 83 Ala. 401,3 South. Rep. 796; Frenkel v. Hudson, 82 Ala. 158, 2 South. Rep. 758.

/ If the jury should find that the evidence as to any fact essential to plaintiffs' right of recovery, and as to which the burden of proof rests on them, is evenly balanced, or in equilibrium, their verdict must be for the defendant. Vandecenter v. Ford, 60 Ala. 610. We have not deemed it necessary to specifically consider the numerous exceptions to the rulings of the court on the evidence, and in instructing the jury, each of which is assigned for error. We have endeavored to select such as related to the issues properly made by the evidence in its different aspects, and involved the principles on which the rights of the parties must ultimately depend, and which should govern the court in putting the case before the jury. Evidence which proximately tends to prove or disprove these principal issues should be received, and that excluded which is incapable of affording a reasonable presumption of their truth or falsity; and charges based on partial facts, ignoring other material facts, such as a bare shipment of goods to defendant, and the appropriation of them to his use by him or his authorized agent, omitting reference to the fact of a

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