[Tennessee River Transportation Co. v. Kavanaugh Bros.]

Company $675, the value of a barge alleged to have been rented by the defendant under a contract, that if it failed to return the barge in as good condition as it was when received by the transportation company, it was to pay plaintiffs $675.

The facts of the case are sufficiently stated in the opinion. On the examination of one Lewis, as a witness for the plaintiffs, he testified that he had several business transactions with C. H. Hobbs, as agent for the Tennessee River Transportation Company, and that the company had ratified the said transactions. The plaintiffs introduced in evidence an agreement made between the Tennessee River Transportation Company by C. H. Hobbs, as agent, with the American Oak Extract Company, of which the witness, Lewis, was agent. The defendant objected to the introduction of this paper, because it was irrelevant and immaterial. The court overruled said objection, and the defendant duly excepted.

Upon the examination of said C. H. Hobbs, and after he had testified that when away from Decatur he was at work on the river between Guntersville and Decatur, he was asked: "What were you doing during the time you were up the river?" Plaintiffs objected to this question, the court sustained the objection, and defendant duly excepted. The witness was then asked by defendant this question: "State whether or not you transacted any business for the transportation company away from Decatur except clerical work done on the boat?" The plaintiff's objected to this question, and their objection being sustained, the defendant duly excepted. On the cross-examination of the witness Hobbs, and after denying that he had an agreement with the plaintiff's to buy the barge in question, the plaintiffs asked the said witness the following question: "State if on or about the 25th of March, 1889, at the foot of Bank Street near the river, you did not have a conversation with Kavanaugh Brothers, in which you said the Tennessee River Transportation Company ought to pay Kavanaugh Brothers for the barge, and that you were going to Chattanooga soon to see that they did pay them for it; and at the same time did you not get from Kavanaugh Brothers a check that they had given to the transportation company, in payment of the bill for towing, saying that you

[Tennessee River Transportation Co. v. Kavanaugh Bros.]

wanted to use the check to show them that you had turned it in all right, and that you would take it up. there and give them hell on that check business; and did you not threaten to sue them?" Defendant objected to this question because it was irrelevant and immaterial; and on the ground that it was a narrative of a past transaction, and called for declarations of an agent after the agency had ceased. Plaintiffs' counsel stated to the court that their object in asking this question was for the purpose of impeaching the witness. The court over-, ruled the objection, and the defendant duly excepted. Upon the further cross-examination of said witness he was asked the following question: "Did you not ask Kavanaugh Brothers to submit you a statement as to what they would take from the Tennessee River Transportation Company in settlement of the barge matter, about April 14th, soon after the commencement of this suit; and did you not make of Louis T. Kavanaugh a verbal request for a statement in writing, saying that you thought you could get a settlement for this barge from Tennessee River Transportation Company?" The defendant objected to this question upon the same grounds interposed to the question just above. The counsel for plaintiffs "stated that he did not ask this question to call forth independent evidence, but solely for the purpose of impeaching the witness." The court overruled the objection, and the defendant excepted.

Upon the cross-examination of one T. V. Meyer, who testified that he was secretary and treasurer of the defendant, he was asked this question by the defendant : "State whether or not you, as secretary of this company, ever signed a certificate and filed it in the office of Secretary of State, at Montgomery, designating a known place of business and an authorized agent thereat?" Plaintiffs objected to this question, objection was sustained, and defendant duly excepted. On the cross-examination of one L. M. Meyer, a witness for the defendant, he stated: "I know Hobbs did not have authority to buy a barge, because the board of directors never empowered him to do so." The plaintiffs objected to this statement and moved to exclude it, which motion the court sustained, and the defendant duly excepted. In rebuttal, the plaintiffs introduced L. T. Kavanaugh, one of the plaintiff's, as a witness, and asked him this

[Tennessee River Transportation Co. v. Kavanaugh Bros.]

question: "State if on or about the 25th of March, 1889, at the foot of Bank Street in Decatur near the Tennessee river, you had a conversation with C. H. Hobbs about the purchase of the barge in this suit?" Defendant objected to this question on the ground that it was irrelevant and immaterial; and that it evoked a declaration of an alleged agent after the agency had ceased. Plaintiffs stated that he asked this question solely to impeach Hobbs. The court overruled the question, and the defendant duly excepted.

Among the many charges given at the request of the plaintiffs was the following: (17.) "I charge you, gentlemen of the jury, that under the evidence the general manager of the defendant, to-wit, Farnum, had authority to appoint agents to make contracts to bind the company, and if you believe from all the evidence that he did appoint Hobbs the agent of the defendant at Decatur, or held him out to the plaintiffs as such agent,. and that Hobbs made the contract with the plantiffs as set forth in the complaint, and that defendant or its agents injured and ruined the barge procured by Hobbs from plaintiffs, and that the use of a barge was within the scope of defendant's business operations, your verdict must be for the plaintiffs.''

The defendant separately excepted to the giving of each of the several charges requested by the plaintiffs, and also separately excepted to the court's refusal to give the several charges requested by it. The opinion renders it unnecessary to set these charges out at length. There was judgment for the plaintiffs, and the defendant appeals; and as signs as error the several rulings of the trial court on the evidence, and the giving and refusing the several charges asked.

HARRIS & EYSTER, for appellant.-(1.) The statement of Farnum introducing Hobbs to the plaintiffs was not made in and about any business of the defendant, nor while in the discharge of his duties as general manager. The declarations of Farnum were, therefore, not binding on defendant.-Danner Lumber Co. v. Stonewall Ins. Co., 77 Ala. 184; Ricketts v. Birmingham St. Railway Co., 85 Ala. 600; 5 So. Rep. 353. (2.) The purchase of the barge by Hobbs was in excess of his authority, and the

[Tennessee River Transportation Co. v. Kavanaugh Bros.]

plaintiffs in dealing with him were bound to know the extent of his authority.-Johnson v. Ala. Gas, Fuel and Manf'g Co., 90 Ala. 505, 8 So. Rep. 101; Burks v. Hubbard, 69 Ala. 379; Ladd v. Shattock, 90 Ala. 134, 7 So. Rep. 764; Cummins v. Beaumont, 68 Ala. 204; 3 Brick. Dig., 22, § 54 et seq. (3.) The question asked one of the plaintiffs as a witness as to a conversation with Hobbs was erroneous. It was a mere narrative of a transaction, and that after the said Hobbs had left the employment of the defendant.-Tennessee River Trans. Co. v. Kavanaugh, 93 Ala. 324, 9 So. Rep. 395.

E. W. GODBEY, contra.—(1.) An officer of a corporation has implied anthority to appoint sub-agents, whenever necessary, or authorized by usage.-Johnson v. Cunningham, 1 Ala. 249; Story on Agency, § 14; 1 Amer. & Eng. Encyc. of Law, 369; Wood's Field on Corp., §§ 182, 183; Ala. & Tenn. R. R. Co. v. Kidd, 29 Ala. 221; Tenn. River Trans. Co. v. Kavanaugh, 93 Ala. 331, 9 So. Rep. 395. (2.) Hobbs acted and contracted for appellant in so many instances, diverse in their character and effect, with its knowledge and consent, that the presumption of his appointment could not be denied even if no express authority was shown.-Story on Agency, (9th Ed.) §§ 10, 443, note; Bishop on Contracts, §§ 1102, 1101, 1100; Wood's Field on Corp., § 101. (3.) The emergency calling for a barge at the particular time was so grave and urgent as to justify even a deviation from the ordinary limitations and import" of the authority.Story on Agency, (9th Ed.), § 85.

STONE, C. J.-This is the second appeal in this case— 93 Ala. 324, 9 So. Rep. 395. Most of the facts are stated in the report of the former decision. The testimony tended to prove the following facts, and, to this extent, there was little or no conflict. The defendant company was a foreign corporation, owning steamboats, and plying them between Decatur, Alabama, and points on the river above. It transported passengers and freight for hire, and, in connection with its freight business, it was in the habit of employing barges. It owned some barges. The barge which gave rise to the present suit was the property of Kavanaugh Brothers, and it was lying in the river at Decatur. Hobbs made a contract with Kavanaugh

[Tennessee River Transportation Co. v. Kavanaugh Bros.]

7

Brothers for the hire of the barge, and agreed to pay for its use a fixed compensation for every day he might retain it, and to return it in good repair. Failing to so return it, he agreed to pay for it as upon a purchase. The barge was taken in tow by one of the steamboats of the defendant corporation, was carried up the river, and was not returned to Decatur until a month afterwards. When returned it was very materially damaged, if not ruined, and Kavanaugh Brothers refused to accept it. They then brought the present suit to recover its alleged value. To this extent, as we have said, there was a substantial agreement in the testimony.

It was contended for plaintiffs, and their testimony tended to prove the contention, that they did not contract with Hobbs in his individual capacity, or on his credit. That Hobbs was the agent of the Tennessee River Transportation Company, and made the contract in its name and for its use. Their testimony tended to show that Hobbs, as such agent, had authority to make such contract for, and in the name of the transportation company. It went further, and tended to show that one Farnum, at and before the hiring of the barge by Hobbs, was the general manager of the transportation company, having large powers and control, and that he had introduced Hobbs to Kavanaugh Brothers and others as the transportation company's agent at Decatur, having power to contract in the name of the corporation. There was also testimony for plantiffs tending to show that Hobbs had made contracts, one or more, in the name of the transportation company, which that company had ratified and complied with; purchasing property and the company paying for it.

The testimony for defendant was in conflict with that last stated. It denied the agency, denied that the contract was made in the name, or for the use, of the transportation company, but claimed that it was the indiviIt gave testimony dual contract of Hobbs himself. tending to rebut, explain, and parry the alleged acts of ratification.

We think we are in safe bounds when we affirm that Mr. Farnum, when he was the managing agent of the corporation, was clothed with very large powers; and there is nothing in the transcript before us to controvert or impair the force of that conclusion. We take a fur