Opinion
7 Div. 24.
January 13, 1921. Rehearing Denied April 14, 1921.
Appeal from Circuit Court, Etowah County; J. E. Blackwood, Judge.
Goodhue Brindley, of Gadsden, for appellant.
The court erred in giving charges A, B, and C. 135 Ala. 482, 33 So. 39; 148 Ala. 434, 43 So. 797. The question of agency was one for the jury. 148 Ala. 519, 41 So. 982; 127 Ala. 137, 28 So. 679; 52 Ala. 610, 23 Am. Rep. 578. The last contract was confirmed by silence and acquiescence. 10 Ala. 755, 44 Am. Dec. 505; 107 Ala. 300, 19 So. 966, 54 Am. St. Rep. 93; 98 Ky. 583, 33 S.W. 835; 121 Ga. 521, 49 S.E. 600; 73 N.E. 430; 13 C. J. 277.
Dortch, Allen Dortch, of Gadsden, for appellee.
If this case can escape the general charge for plaintiff, it is certain that rule 45 ought to be applied. 12 Ala. App. 287, 68 So. 538; 171 Ala. 52, 54 So. 1001; 171 Ala. 183, 55 So. 115; 67 So. 414; 13 Ala. App. 468, 69 So. 382. There was no merit in the objection to evidence. 76 So. 982; 15 Ala. App. 275, 73 So. 216; 15 Ala. App. 556, 74 So. 98. There is no error in the charges given. 198 Ala. 276, 73 So. 498; 192 Ala. 576, 69 So. 4; 198 Ala. 162, 73 So. 451. See former report of this case in 201 Ala. 222, 77 So. 751, relative to the question of agency; also 104 Ala. 100, 16 So. 29; 105 Ala. 316, 16 So. 912; 94 Ala. 346, 10 So. 304; 6 Ala. App. 488, 60 So. 450.
On the first trial there was a judgment for the defendant, and on appeal to this court that judgment was reversed. J. C. Lysle Milling Co. v. North Ala. Gro. Co., 201 Ala. 222, 77 So. 748. On the last trial the plaintiff recovered, and this appeal is by the defendant.
The questions now presented arose in respect to the defendant's pleas of set-off and recoupment, in which the defendant sets up a breach by the plaintiff of alleged contracts to sell and deliver to the defendant flour. The first contract involved the sale by the plaintiff to the defendant of 800 barrels of flour, a part of which was delivered, and for which the defendant had paid in part, and the balance claimed to be due for flour delivered under this contract constitutes the plaintiff's claim; and in respect to the balance due, aside from the defenses embodied in the plea of set-off and recoupment, there is no controversy.
The fact that the order first given for the 800 barrels of flour was made by the defendant and accepted by the plaintiff, and that plaintiff undertook to deliver, and did deliver, part of the flour, is conceded; but, as to this, plaintiff's contention is that the defendant failed to receive and pay for the flour as per its contract; while the defendant contends that the terms of the contract were in some respects changed through subsequent negotiations.
In respect to the second order given by the defendant for the purchase of 700 barrels of flour, the evidence goes to show that the order was solicited by the plaintiff's sales manager Fitzhugh, and was given by the defendant through its president Jordan, and in due course was forwarded by Fitzhugh to the plaintiff at its home office, Leavenworth, Kan. There is evidence tending to show that the order was entered on the plaintiff's books, but, as it contends, through error. There was no confirmation by the plaintiff of the order direct from the home office, and the plaintiff's contention is that this was essential to constitute it a binding contract. The evidence, however, shows that the plaintiff maintained an office at Jackson, Miss., and one at Atlanta, Ga., under the supervision and control of its sales manager, Fitzhugh, in which the business was conducted in the name of the plaintiff, and the correspondence with reference to sales from the home office in Leavenworth was addressed to the plaintiff at its respective offices, and the correspondence sent out from the Jackson, Miss., and Atlanta, Ga., offices was all signed by the plaintiff through its office force. Some of the defendant's evidence tends to show that, while the home office usually acknowledged an order with "a thank you," there was no formal confirmation of such orders.
On the whole, it was a question for the jury as to whether or not Fitzhugh was authorized to bind the plaintiff in accepting orders without confirmation. Robinson Co. v. Green, 148 Ala. 434, 43 So. 797.
If Fitzhugh in fact had authority to accept orders and make binding contracts without confirmation of the Leavenworth office, it was not essential to constitute such acceptance a binding obligation that the defendant should have relied on his authority. It is only where the act is merely within the apparent scope of an agent's authority that one dealing with him must rely upon such apparent authority. Patterson v. Neal, 135 Ala. 482, 33 So. 39; J. C. Lysle Milling Co. v. North Ala. Gro. Co., supra.
Charge A, given at the request of the plaintiff, should have been refused. Charges B and C pretermit consideration as to Fitzhugh's actual authority to bind the plaintiff without confirmation, and were invasive of the province of the jury. They also ignored the evidence tending to show that the order was accepted by the Leavenworth office.
The objections to the evidence, made the basis of assignments of error 4 and 5, are without merit.
For the errors pointed out, the judgment of the circuit court will be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.