Opinion
6 Div. 484.
October 27, 1921. Rehearing Denied November 17, 1921.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
David J. Davis, of Birmingham, for appellant.
Agency is not proven by mere actual declarations of one assuming to be an agent. 97 Ala. 681, 12 So. 295. Declarations of an agent or officer of a corporation are not competent evidence, unless made in such a way as to constitute same a part of the res gestæ. 196 Ala. 365, 72 So. 34; 97 Ala. 681, 12 So. 295; 77 Ala. 184. Self-serving declarations or acts are not admissible. 22 C. J. 220; 143 La. 609. 79 So. 24; 184 Ala. 54, 63 So. 466. The judgment was not authorized by the finding of the facts. 45 So. 155; 114 Ala. 431, 21 So. 994; 172 Ala. 532, 55 So. 214. Attention is called to the recent decision found reported in 205 Ala. 145, 87 So. 531.
R. D. Coffman, of Birmingham, for appellee.
Brief of counsel did not reach the Reporter.
This is the second appeal in this cause, the former review by the Court of Appeals being reported in 16 Ala. App. 583, 80 So. 157. The reversal was then predicated on a construction of Code, § 5360, that this court, in Jones v. Hines, 205 Ala. 145, 87 So. 531, 532, found, belatedly, was erroneous.
The action, instituted by appellee against appellant, is based on an assignment of or order for $5.50, wages the appellant was due one Sadler, its employee, for work done within a stipulated period. It is manifest from the record that the findings, conclusions, and judgment of the trial court were justified by the evidence and inferences therefrom. The appellant offered no evidence. It will serve no useful purpose to comment upon or to reproduce the evidence further than to observe that the facts and circumstances descriptive of the occasion upon which the assignment or order was presented by Blackwell at the office of the appellant show with requisite certainty that the person receiving the assignment or order so presented was at the time a representative of the appellant and then engaged in the service of the appellant. Evidence of his acts in receiving the paper, in turning to books in the office with the view to ascertaining the state of Sadler's account, in saying, "It's here," and in retaining the paper — this in keeping with the practice, properly admissible, on like previous occasion — was, under the quite plain indicia of authority and relation shown by the testimony, admissible as of the res gestæ of the event, the presentation of the order or assignment upon which the action is based. The admission of evidence of these matters did not at all offend the familiar rule forbidding proof of agency by mere declarations of the asserted agent. Evidence of the acts or declarations of an asserted agent is admissible where, as here, there is other testimony tending to show the fact of agency. Robinson v. Greene, 148 Ala. 434, 440, 43 So. 797, and Salvo v. Wilson, 189 Ala. 446, 449, 66 So. 613, among others. And declarations under such circumstances are not within the category of self-serving declarations held, on proper occasion, to be inadmissible.
There is no error in the record. The judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
On Rehearing.
After reconsideration of the matters urged in support of the application for rehearing, the court remains convinced of the correctness of the conclusions announced. The statement of the person in appellant's office, when Blackwell presented the order, "It's here," was referable to the subject of the order, viz. the wages of Sadler between the dates mentioned in the order, and hence was evidence tending to show that the subject of the assignment or order (Sadler's wages described in the order) was then due Sadler, and was earned wages thereby assigned.
There was no error in permitting plaintiff (appellee) to show by the witness Eshmore that he, then in the service of plaintiff gave the assignment or order to Blackwell "to take out to the" appellant, which it was otherwise shown Blackwell did in the way indicated in the original opinion ante. This testimony was of the res gestæ of the authorized presentation of the assignment or order to the appellant. Such testimony did not offend the rule against self-serving declarations, within the doctrine of Kuykendall v. Edmondson, 200 Ala. 650, 77 So. 24, and Williams v. Lay, 184 Ala. 54, 63 So. 466. The application for rehearing is overruled.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.