Opinion
7 Div. 630.
April 1, 1926. Rehearing Denied May 13, 1926.
Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.
M. M. Smith, of Pell City, and Rudulph Smith, of Birmingham, for appellant.
The signature of a party to a negotiable instrument may be made by a duly authorized agent, and no particular form of appointment is necessary for the purpose. Code 1923, § 9047. A general agent has authority to transact all of the business of the principal of a particular kind in a particular place. Southern St. F. I. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63; Dadeville, etc., Co. v. Fertilizer Co., 194 Ala. 685, 69 So. 918; Simpson v. Harris, 174 Ala. 430, 56 So. 968; Clark v. Eufaula Brick Wks., 205 Ala. 545, 88 So. 669; Langham v. Jackson, 211 Ala. 416, 100 So. 757. Appellee's husband had the authority to bind her in the execution of the notes. Wimberly v. Windham, 104 Ala. 409, 16 So. 23, 53 Am. St. Rep. 70; Lytle v. Bank, 121 Ala. 215, 26 So. 6; Wooten v. Fed. Disc. Co., 7 Ala. App. 351, 62 So. 263. The question asked defendant as to whether her husband had authority to sign her name to notes was subject to objection. Clark v. Eufaula Brick Wks., supra. The appellee by her conduct ratified the act of her husband in signing the notes. Jones v. Atkinson, 68 Ala. 167; 2 C. J. 489-513; Hoene v. Pollak, 118 Ala. 617, 24 So. 349, 72 Am. St. Rep. 189; Taylor v. A. M. Ass'n, 68 Ala. 229.
Percy, Benners Burr, of Birmingham, for appellee.
Withdrawal or abandonment by a party of any counts or pleas renders without injury any errors committed by the court in reference to such withdrawn or abandoned issues. Southern R. Co. v. Bunt, 131 Ala. 591, 32 So. 507; L. N. R. Co. v. Lile, 154 Ala. 556, 45 So. 699; Stevenson v. Whatley, 161 Ala. 250, 50 So. 41; Mobile L. R. Co. v. Walsh, 146 Ala. 295, 40 So. 560; Pace v. L. N. R. Co., 166 Ala. 531, 52 So. 52. An agent has no implied authority to bind his principal by making negotiable paper. 21 R. C. L. 870; 2 C. J. 636; Ala. National Bank v. O'Neil, 128 Ala. 192, 29 So. 688. All material facts must be made known to a principal before he can be held to have ratified an unauthorized act of his agent. 31 Cyc. 1647; Moore v. Ensley, 112 Ala. 228, 20 So. 744; 2 C. J. 476.
This was an action on negotiable promissory notes, and several special pleas were interposed, but the record discloses that all pleas except 1 and 3 were withdrawn before the cause was submitted to the jury. Indeed, counsel for the appellant, in their brief, concede that the general issue and the plea of non est factum presented the only issue that was submitted to the jury. This being the case, any rulings made in reference to the pleas that were eliminated if erroneous was error without injury. Southern R. R. v. Bunt, 131 Ala. 591, 32 So. 507; L. N. R. R. v. Lile, 154 Ala. 556, 45 So. 699; Stevenson v. Whatley, 161 Ala. 250, 50 So. 41; Pace v. L. N. R. R., 166 Ala. 531, 52 So. 52.
The notes in question were not signed by the defendant, but by her husband, who seems to have been the general manager of her store, and the sole question involved was his authority to sign said notes for her, and which issue was submitted to the jury by the trial court.
"Although an agent may have general authority to manage the principal's business, he has, by virtue of this employment, no implied authority to bind his principal by making negotiable paper. 21 R. C. L. par. 45, p. 870.
"Commercial paper passes current, to a limited extent, like money, and accordingly power to an agent to execute it is to be strictly limited and will never be lightly inferred, but ordinarily must be conferred expressly. * * * Such power is ordinarily not to be inferred from a general authority to manage a business. 2 C. J. par. 280, p. 636.
" 'An agent to manage a business, cannot mortgage the property used in carrying it on, nor bind his principal by the execution or endorsement of negotiable paper.' Ala. Nat. Bank v. O'Neil, 128 Ala. 192-196, 29 So. 688, 689."
The defendant and her agent both denied any express authority for the execution by him of such a note, and, in the absence of such authority, whether or not it should be implied or was subsequently ratified is ordinarily a question for the jury, especially so in this case, as the defendant's evidence denied any knowledge of the execution of this note until demand was made for the payment of same. The trial court did not therefore err in refusing the general charge for the plaintiff either upon the question of authorization or subsequent ratification.
In the case of Wimberly v. Windham, 104 Ala. 409, 16 So. 23, 53 Am. St. Rep. 70, the agent was acting upon a very broad power of attorney, and was practically authorized to do all acts that the principal could perform. In the cases of Lyle v. Bank of Dothan, 121 Ala. 215, 26 So. 6, and, Wooten v. Federal Discount Co., 7 Ala. App. 351, 62 So. 363, the court held that, under the facts disclosed, it was a question for the jury, both as to the authorization and ratification, and the facts in the latter case were perhaps more favorable to the plaintiff than in the case at bar. In the case of First National Bank of Thomasville v. Gobey, 152 Ala. 517, 44 So. 535, the court held that the authority of the agent to draw the draft was a question for the jury.
There was no error in refusing the plaintiff's requested charge 10. It invades the province of the jury. It also includes a demand for the car, and overlooks the fact that the defendant agreed to pay the note only upon the condition that the car was forthcoming, and may have continued with the sales with the expectation that the car would be sent, and with no intention of ratifying the execution of the notes unless the car was shipped. It was therefore a question for the jury as to whether or not a continuation of the canvass after she found out about the notes amounted to a ratification by the defendant.
Charge 9, if not otherwise faulty, invades the province of the jury, as also does charge Y.
Refused charge C is vague and meaningless as applicable to the issues submitted to the jury.
The defendant was asked, "State if he had authority or ever received authority of signing your name to notes." The first part of this question was possibly a conclusion of the witness, and whether or not he had authority was, under the evidence, a question for the jury. Clark v. Eufaula Brick Works, 205 Ala. 545, 88 So. 669. But the latter part of the question merely meant whether or not she had given him express authority to sign the notes, and was not a conclusion, but a fact which she could state. Where part of the question is good and a part bad it was incumbent upon the objector, in order to put the trial court in error, to have separated the good from the bad by the objection.
Finding no reversible error in the record, the judgment of the trial court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.