Cocke v. Campbell & Smith

Supreme Court of Alabama

Cocke v. Campbell & Smith

13 Ala. 286

CourtSupreme Court of Alabama

DecidedJanuary 15, 1848

StatusPublished

Cited by7 cases

This text of 13 Ala. 286 (Cocke v. Campbell & Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cocke v. Campbell & Smith, 13 Ala. 286 (Ala. 1848).

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Opinion

DARGAN, J.

It is true, that an agent cannot bind his principal by deed, unless he have authority under seal; but if an agent be authorized to sell a chattel, which he may do by parol, or by writing not under seal, and the agent sell the chattel, and execute a conveyance under seal, and the principal receives the purchase money, in whom is the title to the chattel vested? Suppose the principal could cancel the' contract, because it is under seal, yet he does not choose' to' do it — I ask, if the title is not perfect in the vendee ? If so,by what right does the vendee bold ? The answer is, by his purchase. Why cannot the original owner claim the chattel ? Because he has parted with his title. Then there is a contract consummated between the vendor and the ven[289]*289dee. The vendor is not bound by the deed, yet it is a contract. It can only be a simple contract, or a contract by parol. The testimony tended to show, that David Campbell authorized Alexander Campbell to sell the slave. The power to sell, implies the power to warrant the title, and the soundness of the slave. See Skinner v. Gunn, 9 Porter, 305; Gaines v. McKinley, 1 Ala. Rep. 446. And the only remaining question is, was there a warranty ?

This could be shown by what the agent said at the time of the sale; and we entertain no doubt but the bill of sale might be looked to by the jury, not as the deed of the plaintiff, and therefore binding on him, but as evidence, or the admissions of the agent at the time of the sale, to ascertain the terms of the contract. If the agent had written down the terms of the sale, under his own seal, this would not have bound the plaintiff, as by his deed, but it being the declarations of the agent, made at the moment of executing the contract, and showing what the contract was, it would be evidence by which the jury could be informed of the nature and terms of the contract. From this it results, that the court erred in not giving the charge first requested by the defendants.

The judgment is therefore reversed, and the cause remanded.

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DARGAN, J.

It is true, that an agent cannot bind his principal by deed, unless he have authority under seal; but if an agent be authorized to sell a chattel, which he may do by parol, or by writing not under seal, and the agent sell the chattel, and execute a conveyance under seal, and the principal receives the purchase money, in whom is the title to the chattel vested? Suppose the principal could cancel the' contract, because it is under seal, yet he does not choose' to' do it — I ask, if the title is not perfect in the vendee ? If so,by what right does the vendee bold ? The answer is, by his purchase. Why cannot the original owner claim the chattel ? Because he has parted with his title. Then there is a contract consummated between the vendor and the ven[289]*289dee. The vendor is not bound by the deed, yet it is a contract. It can only be a simple contract, or a contract by parol. The testimony tended to show, that David Campbell authorized Alexander Campbell to sell the slave. The power to sell, implies the power to warrant the title, and the soundness of the slave. See Skinner v. Gunn, 9 Porter, 305; Gaines v. McKinley, 1 Ala. Rep. 446. And the only remaining question is, was there a warranty ?

This could be shown by what the agent said at the time of the sale; and we entertain no doubt but the bill of sale might be looked to by the jury, not as the deed of the plaintiff, and therefore binding on him, but as evidence, or the admissions of the agent at the time of the sale, to ascertain the terms of the contract. If the agent had written down the terms of the sale, under his own seal, this would not have bound the plaintiff, as by his deed, but it being the declarations of the agent, made at the moment of executing the contract, and showing what the contract was, it would be evidence by which the jury could be informed of the nature and terms of the contract. From this it results, that the court erred in not giving the charge first requested by the defendants.

The judgment is therefore reversed, and the cause remanded.

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Bluebook (online)

13 Ala. 286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cocke-v-campbell-smith-ala-1848.

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