Summary
In State v. Retail Credit Co., 25 Ala. App. 568, 151 So. 474, 475, the court said: "The facts and circumstances are sufficient, in our opinion, to show prima facie that Wilhelm was the appellee's agent and engaged in transacting business for it. Where the fact of agency is shown by independent evidence, direct or circumstantial, the declarations of an agent as to the nature and extent of his agency are admissible. Birmingham Mineral Railroad Co. v. Tennessee Coal, Iron Railroad Co., 127 Ala. 137, 28 So. 679."
Summary of this case from Jameson v. First Savings Bank Trust Co. of AlbuquerqueOpinion
1 Div. 114.
November 7, 1933. Rehearing Denied November 21, 1933.
Appeal from Circuit Court, Mobile County; J. Blocker Thornton, Judge.
Action to recover license taxes by the State against the Retail Credit Company. Plaintiff, being dissatisfied with the judgment in its favor, appeals.
Reversed and remanded, with directions.
Certiorari denied by Supreme Court in State v. Retail Credit Co., 151 So. 475.
Thos. E. Knight, Jr., Atty. Gen., and Frontis H. Moore, Asst. Atty. Gen., and Wm. V. McDermott, of Mobile, for appellant.
Where the fact of agency rests in parol, or is to be inferred from the principal's conduct, and there is evidence tending to show agency, the agent's acts and declarations are admissible. Gibson v. Snow Hdw. Co., 94 Ala. 346, 10 So. 304; Birmingham M. R. Co. v. Tenn. Coal, Iron R. Co., 127 Ala. 137, 28 So. 679; Eagle Iron Co. v. Baugh, 147 Ala. 613, 41 So. 663; Union N. S. Co. v. Pugh, 156 Ala. 369, 47 So. 48; Miller-Brent L. Co. v. Stewart, 166 Ala. 657, 51 So. 943, 21 Ann. Cas. 1149; Pullman Co. v. Meyer, 195 Ala. 397, 70 So. 763; Roberts Son v. Williams, 198 Ala. 290, 73 So. 502; Thompson v. Atchley, 201 Ala. 398, 78 So. 196, 79 So. 478; Mid-Continent L. I. Co. v. Beasley, 202 Ala. 35, 79 So. 373; Corona C. I. Co. v. Callahan, 202 Ala. 649, 81 So. 591; Ala. Power Co. v. Davidson, 206 Ala. 501, 90 So. 915; American C. I. P. Co. v. Birmingham T. Co., 206 Ala. 609, 91 So. 484; Campbell M. Co. v. Brewer, 212 Ala. 50, 101 So. 748; Warren Webster Co. v. Zac Smith Staty. Co., 222 Ala. 41, 130 So. 545. Agency may be proved by circumstances. Hill v. Helton, 80 Ala. 528, 1 So. 340; Republic I. S. Co. v. Passafume, 181 Ala. 463, 61 So. 327; Salvo v. J. C. Wilson Co., 189 Ala. 446, 66 So. 613. Evidence that appellee furnished Wallace Wilhelm with an office and paid the rent for same, and furnished the report forms used by him, was sufficient to raise a presumption of agency and permit the introduction of evidence as to Wilhelm's acts and declarations. Birmingham News Co. v. Birmingham Printing Co., 213 Ala. 256, 104 So. 506. When the existence of a personal relationship is once established, the law presumes its continuance until the contrary is shown or a different presumption is raised. Mid-Continent L. I. Co. v. Beasley, supra.
Smith Johnston, of Mobile, for appellee.
The act applies only to persons, firms, or corporations whose principal business is inquiring into and reporting the credit and standing of persons, etc. Not only are the words of the statute clear in so limiting its effect; revenue laws must be strictly construed against the state and in favor of the taxpayer. State v. New Florence Op. Co., 19 Ala. App. 194, 95 So. 913; State v. H. G. Fain Service Station, 23 Ala. App. 239, 124 So. 119; Id., 220 Ala. 55, 124 So. 121; Jefferson County v. Smith, 23 Ala. App. 421, 125 So. 401; Yarbrough Bros. v. Phillips, 209 Ala. 341, 96 So. 414. Agency cannot be proven by the declarations of the agent. Gambill v. Fuqua, 148 Ala. 448, 42 So. 735; 2 C. J. 935.
The state of Alabama instituted suit against the Retail Credit Company, a corporation, in the circuit court of Mobile county, to recover state and county licenses, taxes, and penalties for the fiscal years 1931 and 1932, under section 334 of the Revenue Code, which provides: "Each person, firm, corporation or association whose principal business is inquiring into and reporting upon the credit and standing of persons, firms, or corporations in this State, shall pay to the State a license of five hundred dollars, and shall also pay a license of fifty dollars to each county in which such person, firm, corporation or association maintains an office or established place of business," etc. Gen. Acts 1919, pp. 282, 395, § 361, schedule 32.
The appellee denied liability on two grounds: First, it claimed that it was not shown that it maintained an office in Mobile county; second, it claimed it was not shown that its principal business was "inquiring into and reporting upon the credit and standing of persons," within the meaning of said act.
The case was tried by the court without the intervention of a jury, and a judgment rendered for the state for $66.75, "being Mobile County privilege license for 1930-31 and penalties thereon."
It appears without dispute that the defendant rented an office in an office building in the city of Mobile, that was operated by one Wilhelm during the period for which license is sought to be collected. It also appears that the defendant furnished Mr. Wilhelm with supplies with which he operated said office and made reports. It appears without dispute that the personal business of Wilhelm was inquiring into and reporting on the credit and standing of persons, firms, or corporations in this state.
The facts and circumstances are sufficient, in our opinion, to show prima facie that Wilhelm was the appellee's agent and engaged in transacting business for it. Where the fact of agency is shown by independent evidence, direct or circumstantial, the declarations of an agent as to the nature and extent of his agency are admissible. Birmingham Mineral Railroad v. Tennessee Coal, Iron Railroad Co., 127 Ala. 137, 28 So. 679.
Having shown, as we think the record discloses, that Wilhelm was engaged in the business of inquiring into and reporting upon the credit and standing of persons for the defendant during the fiscal year 1931, and it being shown that he continued in that line of business during the fiscal year 1932, the law presumes the continuance of the personal relation that was established by the evidence until the contrary is shown or until a different presumption is raised. Mid-Continent Life Ins. Co. v. Beasley, 202 Ala. 35, 79 So. 373.
The rulings of the court below conflict with the rule we have referred to. We are of the opinion that the judgment should be reversed, and the cause remanded, with instructions to the court below to render a judgment against appellee for the sum sued for.
Reversed and remanded, with instructions.