Opinion
5 Div. 118.
October 6, 1932.
Appeal from Circuit Court, Chilton County; George F. Smoot, Judge.
Reynolds Reynolds, of Clanton, for appellant.
Every special promise to answer for the debt, default, or miscarriage of another is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith. Lindsay v. McRae, 116 Ala. 542, 22 So. 868; Bailey Ir. Wks. v. M. O. R. Co., 4 Ala. App. 660, 59 So. 191; Code 1923, §§ 8-34 (3); Thornton v. Guice, 73 Ala. 321. In an action of assumpsit, if the promise sued on is a collateral undertaking, the complaint must be special. Park, Robertson Hdw. Co. v. Copeland, 11 Ala. App. 447, 66 So. 880; Walker v. T. G. Forbes, 25 Ala. 139, 60 Am. Dec. 498; 5 C. J. 1383. The power of an agent to bind his principal rests upon the authority conferred upon him by the principal, and one who deals with an agent is chargeable with the duty to ascertain the extent of the agent's authority. Wheeler v. McGuire, 86 Ala. 398, 5 So. 190, 2 L.R.A. 808; Clealand v. Walker, 11 Ala. 1058, 46 Am. Dec. 238; Merrill v. Worthington, 155 Ala. 281, 46 So. 477; 2 C. J. 560, 590. Where the evidence plainly and palpably supports the judgment, the court is in error in granting a new trial. Greeson v. Board of Education, 221 Ala. 483, 129 So. 42; Fulwider v. Jacob, 221 Ala. 124, 127 So. 818; Alabama Power Co. v. Hall, 212 Ala. 638, 103 So. 867.
Lawrence F. Gerald, of Clanton, and Sternfeld Lobman, of Montgomery, for appellee.
Where a motion for new trial is made on the ground that the judgment is contrary to the evidence and that the evidence is insufficient, there is a presumption in favor of the ruling of the trial court. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Jackson Lbr. Co. v. Trammell, 199 Ala. 536, 74 So. 469; L. N. R. Co. v. Blankenship, 199 Ala. 521, 74 So. 960; Hatfield v. Riley, 199 Ala. 388, 74 So. 380; Price v. Price, 199 Ala. 433, 74 So. 381; Caravella Shoe Co. v. Hubbard, 201 Ala. 545, 78 So. 899. If the evidence is ore tenus, the action of the trial court in granting a new trial should not be disturbed. Caravello Shoe Co. v. Hubbard, supra. The statute of frauds is not applicable. Defendant became the purchaser of personal property and assumed the debts of the original debtor and became primarily liable. Moore v. First Nat. Bank, 139 Ala. 595, 36 So. 777; Mitchell v. Hickman, 208 Ala. 344, 94 So. 284; Potts Potts v. First Nat. Bank, 102 Ala. 286, 14 So. 663. Ostensible or apparent authority of a general agent cannot be narrowed by secret instructions and limitations. Southern States F. I. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63. Where an agent commits an unauthorized act and the principal, with knowledge of the facts, receives the benefit thereof, the act of the agent is ratified. 2 C. J. 493. And where the agent continues to commit an unauthorized act and the principal is so negligent in the conduct of his business that he fails to ascertain that the agent has disregarded instructions and fails to call attention of the person dealing with the agent that his acts are unauthorized, the principal is estopped to deny the authority of his conduct. Wheeler v. McGuire, 86 Ala. 398, 5 So. 190, 2 L.R.A. 808; Birmingham News Co. v. Birmingham Ptg. Co., 209 Ala. 403, 96 So. 336. Assumpsit on common counts is the proper form of action in this case. Potts Potts v. First Nat. Bank, supra.
This is an action upon an account stated for goods sold to the Robinson Bargain Store which at the time of said sale was owned exclusively by Mrs. W. C. Robinson, the defendant being her husband, but at the time this account was made was in no wise interested in or connected with said store. It is undisputed that, after this account was made and in March, 1930, the defendant, W. C. Robinson, took over or purchased the business and continued same, keeping his wife as an employee or agent in connection with the business. There is no question of the original nonliability of W. C. Robinson, the contention being that he assumed liability when taking charge of the business or that he, in effect, assumed the payment of this particular debt through the agency of his wife in subsequent dealings and purchases by her from plaintiff.
The defendant denied the assumption of the old or existing debts as a part of the consideration of the purchase, but the plaintiff introduced in evidence an answer made by him to an inquiry made by R. G. Dun Co. as to the status of the business and which is as follows, to wit: " 'I took over the store on March 25, and it will continue in the same name, but I am responsible for all purchases of store since that date; Store overstocked and going to reduce stock from $30,000. to $15,000. to $20,000., and pay up all bills as fast as can move goods. (Signed) Clanton, Alabama, 4-18-30, W. C. Robinson.' He is fully reported in his individual name and for details see that report."
This was, of course, not such a promise as would place upon him an independent agreement to pay the back debts, but was, at least, a declaration by him from which an inference could be drawn that he had assumed the payment of all debts and which he would pay as soon as he reduced the stock. True, he expressly acknowledged himself responsible for all purchases since he took charge of the business, but the last part of the statement would indicate that he was to pay "all bills as fast as he can move goods." It was an evidential fact contrary to his testimony, and afforded an inference from which the court could find, the trial being without a jury, that he had assumed, in taking over the business, the payment of the outstanding bills, including his own as the consideration of purchase, and, if such was the contract between himself and his wife, it inured to the benefit of her creditors whether they were party to the contract of purchase or not, and the transaction is not governed by or forbidden by the statute of frauds. Coleman Carroll v. Hatcher Brannon, 77 Ala. 217; North Ala. Dev. Co. v. Short, 101 Ala. 333, 13 So. 385; Mitchell v. Hickman, 208 Ala. 344, 94 So. 284.
As above stated, the answer by the defendant, above quoted, is not relied upon as a promise to fall within the statute of frauds or governed by the case of Lindsay v. McRae, 116 Ala. 542, 22 So. 868, and other cases cited for appellant, but is an evidential fact as to the contract of purchase and created a conflict with his testimony.
This case being tried by the court without a jury and the evidence being ore tenus, or partly so, the action of the trial court in granting the new trial will not be disturbed when based on the weight of the evidence, unless the evidence plainly and palpably supports the judgment. Cobb v. Malone, 92 Ala. 630, 9 So. 738. We cannot say that the evidence so plainly and palpably supported the judgment as to put the trial court in error in setting the same aside.
The judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.