Opinion
1 Div. 252.
April 26, 1923.
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
Harry T. Smith Caffey, of Mobile, for appellant.
Any act of the principal inconsistent with continued authority in the agent is an implied revocation of such authority. Hughes v. Clifton, 147 Ala. 531, 41 So. 998; Langdon v. Langdon, 4 Gray (Mass.) 186; Sleepy Eye Milling Co. v. Chicago Ry. Co., 119 Minn. 199, 137 N.W. 813; Flynn v. Butler, 189 Mass. 377, 75 N.E. 730; Brown v. Bunger (Ky.) 43 S.W. 714; Clark v. Mullenix, 11 Ind. 532; Hatch v. Ferguson, 66 Fed. 668, 14 C.C.A. 41. A ratification on one occasion is insufficient to show agency. Simon v. Johnson, 101 Ala. 368, 13 So. 491; Lyles-Black Co. v. Alldredge, 10 Ala. App. 632, 65 So. 696; Elliott v. Bankston, 159 Ala. 462, 49 So. 76; Temple v. Pomroy, 4 Gray (Mass.) 128; Danaher v. Garlock, 33 Mich. 295; Bank v. Dobbins, 96 Mo. App. 693, 70 S.W. 1089. The custom of the consignor to rescind the sale after title had passed to the consignee and after conversion by the railroad, so as to deprive the consignee of his rights against the wrongdoer, if it existed, would be void. Byrd v. Beall, 150 Ala. 122, 43 So. 749, 124 Am. St. Rep. 60; West v. Ball, 12 Ala. 340; Ferguson v. Morris, 67 Ala. 389; Petty v. Gayle, 25 Ala. 472; M., J. K. C. v. Bay Shore Lbr. Co., 165 Ala. 610, 51 So. 956, 138 Am. St. Rep. 84; Barron v. M. O. R. Co., 2 Ala. App. 555, 56 So. 862; A. G. S. v. Altman, 191 Ala. 429, 67 So. 589; So. Ry. v. Brewster, 194 Ala. 47, 69 So. 111. Ratification can only be predicated on full knowledge of the facts. Herring v. Skaggs, 73 Ala. 446; Moore v. Ensley, 112 Ala. 228, 20 So. 744; Clark v. Taylor Co., 68 Ala. 453. The argument of defendant's counsel was prejudicial. L. N. R. Co. v. Orr, 91 Ala. 548, 8 So. 360.
Smiths, Young, Leigh Johnston, of Mobile, for appellee.
Proof of a previous similar transaction, coupled with proof of the general custom, warranted the jury in finding implied authority in the coal company to settle. Tenn. River Trans. Co. v. Kavanaugh Bros., 101 Ala. 10, 13 So. 283; Quinn v. Dresbach, 75 Cal. 159, 16 P. 762, 7 Am. St. Rep. 138; Grant v. Humerick, 123 Iowa, 571, 94 N.W. 510. When appellant remained silent, and permitted the coal company to collect from the appellee for the coal, he estopped himself to deny authority in the coal company. Irvin v. Irvin, 207 Ala. 493, 93 So. 520; Gibson v. Snow Hdw. Co., 94 Ala. 346, 10 So. 304; 1 Mechem on Agcy. §§ 364, 933; 2 C. J. 472. There was authority by ratification, when Zimmern accepted the benefit of the settlement under circumstances that show he had full knowledge of the facts. Hoene v. Pollak, 118 Ala. 617, 24 So. 349, 72 Am. St. Rep. 189; 2 C. J. 493; Martin v. Powell, 200 Ala. 46, 75 So. 358; Payne v. Hackney, 84 Minn. 195, 87 N.W. 608; Cobb v. Edson (Sup.) 84 N.Y. S. 916; Dowagiac Mfg. Co. v. Hellekson, 13 N.D. 257, 100 N.W. 717; Sanders v. Peck, 87 Fed. 61, 30 C.C.A. 530; Spencer v. McCament, 7 Cal.App. 84, 93 P. 682; Wann v. Scullin, 235 Mo. 629, 139 S.W. 425; Goldschmidt Co. v. Wagner (Tex.Civ.App.) 99 S.W. 737; Washington v. Colvin, 55 Okl. 774, 155 P. 251; Mayfield Woolen Mills v. Long (Tex.Civ.App.) 119 S.W. 908; Worsley v. Ayres, 144 Iowa, 676, 123 N.W. 353; Spencer v. McCament, 7 Cal.App. 84, 93 P. 682; Gardner v. City of Glendale, 45 Cal.App. 641, 188 P. 307; Nye-Schneider-Fowler Grain Co. v. Hopkins, 99 Neb. 244, 155 N.W. 1097.
"It is the well-settled general rule that in order that a custom or usage may be regarded as binding, it is essential that it be legal, and that a custom will not be recognized which is contrary to established law, inconsistent with good morals or in conflict with the general or public policy of the law." 27 R. C. L. p. 164. It has been settled that if, on a given state of facts, the rights and liabilities of the parties to a contract are fixed by the general principles of the common law, they cannot be changed by any local custom of the place where the contract was made. Barnard v. Kellogg, 10 Wall. 383, 19 L.Ed. 987. "No usage is good which conflicts with an established principle of law, any more than one which contravenes or nullifies the express stipulations of a contract." East Birmingham Land Co. v. Dennis, 85 Ala. 565, 5 So. 317, 2 L.R.A. 836, 7 Am. St. Rep. 73; Boon v. The Belfast, 40 Ala. 184, 88 Am. Dec. 761; People's Bank v. Walthall, 200 Ala. 122, 75 So. 570, and cases cited. The usage must be reasonable, and not "oppose or alter established legal principles, and upon a given statement of facts make the rights or liabilities of individuals other than they are at common law." Byrd v. Beall, 150 Ala. 122, 43 So. 749, 124 Am. St. Rep. 60. The contract of shipment in the present case made the plaintiff, the consignee, the legal owner of the shipment of coal, and the law and the contract fixed the rights, the duties, and the obligation of the parties, and the custom sought to be established by the defendant carrier, in effect, gave it the right to break or change its contract to deliver the shipment to the consignee by converting the coal whenever it saw fit and paying the consignor the selling price; thus in effect giving the carrier the power and authority to convert to its own use the shipment and rescind the plaintiff's contract. In other words, the carrier would have the power to, in effect, nullify the contract as to the plaintiff by taking his property and substituting itself in his place by paying the consignor the selling price. If such a custom could govern the shipment of coal, it could be established so as to extend to other goods or commodities, and it would be contrary to public policy to recognize a custom which would permit public carriers to convert to their own use articles they had contracted to deliver by in effect stepping into the shoes of the consignee.
We do not think that the conduct of the plaintiff in condoning the two previous confiscations or conversions, especially when considered with its letter to the Bessemer Company of July 10th, was such an authorization or holding out as to bind this plaintiff to the confiscation or conversion in question.
There was enough evidence, however, to carry the case to the jury upon the theory or doctrine of ratification by the plaintiff. It was shown that the consignor accepted from the defendant the purchase price of the coal and gave the plaintiff credit for same and sent plaintiff a statement disclosing such credit and what it was for, and the plaintiff accepted and retained same by subsequent remittances less said credit, and if this was done knowingly, either before or after the suit was brought, this would be in effect a ratification and would estop the plaintiff from a recovery. In order, however, for it to have this result, it must have been accepted and retained with a knowledge of the item in question and the source from which it arose, and the plaintiff claims that he had no knowledge of the nature or character of the credit until months afterwards, when he immediately repudiated the transaction and restored to the Bessemer Company the amount of said credit. If this be true, this would not operate as a ratification. On the other hand, if this plaintiff accepted or retained this credit, after knowledge of what it was, whether acquired before or after the suit was brought, he was bound by the settlement, for in order to escape the result of same he must have acted promptly in restoring the credit as soon as the information was obtained. He could not knowingly retain the same and then months afterwards restore it for the purpose of enhancing his right to recover in the pending action.
Since this case must be reversed, it is unnecessary to determine whether the failure to exclude the argument of counsel as excepted to was reversible error. It is sufficient to say that the plaintiff was not confined as to the amount of recovery to the cost of the coal at the mine.
We find in the record several charges requested by the plaintiff which are not indorsed as given or refused and signed by the trial judge, and which was no doubt due to oversight or inadvertence. It is proper to say that the statute should be complied with in this respect.
The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.