Opinion
8 Div. 682.
October 23, 1924.
Appeal from Circuit Court, Lauderdale County; Chas. P. Almon, Judge.
Bradshaw Barnett, of Florence, for appellant.
The plaintiff not having accounted for the original, copy of the contract or order was erroneously admitted. C. W. Zimmerman Mfg. Co. v. Dunn, 163 Ala. 272, 50 So. 906. Agency cannot be proven by declarations of the agent out of the presence of the principal. Eubanks v. Anniston Mer. Co., 171 Ala. 488, 55 So. 98. Evidence of the contents of the notes was erroneously admitted. Barbour v. Cantrell, 193 Ala. 154, 69 So. 67; St. Louis Hay Co. v. American Cast Iron Pipe Co., 167 Ala. 442, 52 So. 904.
A. A. Williams, of Florence, for appellee.
The contract introduced was signed by the parties and was the one given plaintiff; it was the original contract. R. D. Burnett Cigar Co. v. Art Wall Paper Co., 164 Ala. 547, 51 So. 263; Supreme Court rule 45. The acts and declarations of the agent here were admissible. Robinson v. Greene, 148 Ala. 434, 43 So. 797; Pullman Co. v. Meyer, 195 Ala. 397, 70 So. 763.
Though the buyer's order declared upon appears to be a carbon copy, rather than the original, no error was committed in admitting it in evidence. Plaintiff testified that it was given to him at the time for the original. It was not necessary to account for the original of such order. For the purposes of the suit, under the foregoing evidence, it was the original, given and accepted as such.
There was no error in permitting the witness to testify that "Mr. Bond was working there" with defendant, and said he was its agent at the time the contract was entered into. Roberts Sons v. Williams et al., 198 Ala. 290, 73 So. 502. Where the fact of agency rests in parol or is to be inferred from conduct of the principal, and there is evidence tending to show agency, the acts and declarations of the agent become admissible. This is a different case to Eubanks v. Anniston Merc. Co., 171 Ala. 488, 55 So. 98, where the husband sought to bind his wife by a declaration of his agency to purchase a stock of goods.
The suit was not upon the notes for deferred payments on the car. It was a collateral inquiry as to the payee of the notes that was properly permitted by parol. It was also material and competent to ask the witness to state whether or not said notes were presented for payment, and by whom. However, the question was not answered.
The statement of the ground of refusal of defendant to comply with the contract of sale was material, and no error intervened in the statement of the witness that the contract was not executed because of the failure to agree to pay interest on the deferred payments.
There was no error shown to have been committed on the trial, and the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.