Parnell v. Farmers' Bank & Trust Co.

77 So. 442, 16 Ala. App. 292, 1917 Ala. App. LEXIS 323

• Court: Alabama Court of Appeals
• Decided: November 20, 1917
• Docket: 5 Div. 244.
• Status: Published

Opinion

SAMFORD, J.

[1] The written charges made the basis of assignments of error 1 and 2 cannot he considered, as they do not comply with the requirements of Acts of the Legislature of 1915, p. 815. The charges are not marked “Refused,” nor are they signed by the presiding judge, and hence do not become a part of the record.

Assignments of error 7, 8, 9, and 10, as insisted upon by counsel in brief, raise the' question as to whether Parnell, one of the members of the partnership, was bound by the clause in the note sued on providing for a waiver of exemption and attorney’s fee in ease of default.

[2, 3] The parts of the oral charge of the court excepted to and raised by assignments of error 7 and 8 were charges upon the effect of the evidence, and for this reason would be bad, had the same been insisted upon in brief, hut this point, not being insisted upon, is under the rulos of this court and of the Supreme Court waived.

The parts of the oral charge excepted to were as follows:

“Now, I charge you that when this partner told him that he had made the note, the mortgage, and that it was for money to pay for the teams that was used for the partnei'shiii, and he acquiesced in it, that that was a ratification, it was a ratification that bound him as to all the terms that were set out in the note; that is, as to the waiver of exemptions and as to the payment of the reasonable attorneys’ fees in the event that it had to he collected by suit.”

“Now, there is a thing for you to determine in this case, the fact that this cheek was sent m, this paper was not met at maturity according to Mr. Parnell’s statement, but the bank extended the payment and charged it against him, eleven dollars and some cents, which was the interest due upon that paper, and that the check went in to him through the regular course of business, canceled. He says he raised no protest against that. I charge you that that was another ratification.”

[4] These charges assert the doctrine of constructive knowledge or imputation of knowledge from more notice. If this suit had been upon an undertaking simply to pay a debt, the fact that defendant knew of its existence and that his name was signed to it, and with this knowledge promised to pay it or made partial payments upon it, would have been sufficient to charge him upon the note, but, as was said by McClellan, J., in the case of Brown v. Bamberger Bloom & Co., 110 Ala. 355, 20 South. 118:

“The doctrine of constructive knowledge, or imputation of knowledge from, mere notice, does not obtain in this connection.* It is what the party sought to be charged knows, and not what he has mere written notice of, that is to be considered in determining whether there has been a ratification. He is charged on full knowledge, and not because be ought to have known, but did not, nor because he had notice which should have invited him to inquire, which, if properly prosecuted, would have brought knowledge.”

Judge Storey said, in his work on Agency (paragraph 231, note 1), that:

“The principal’s want of such knowledge, even if it arises from his own carelessness, in inquiring, or neglect in ascertaining facts, or from other causes, will render such ratification invalid. His knowledge is an essential element.”

The oral charge of the court was in conflict with the foregoing authorities, and, therefore the judgment of the court must he reversed.

The other questions presented by the court will probably not be raised' upon another trial.

For the errors pointed out, the judgment of the court is reversed, and the cause is remanded.

Reversed and remanded.