Robinson v. Brooks

32 Ala. 222

• Court: Supreme Court of Alabama
• Decided: January 15, 1858
• Status: Published

Opinion

RICE, C. J.

There is some conflict in the evidence upon the following questions: 1st, wdiether the claim of the plaintiff and defendant against Carson was a joint one in favor of both, or a separate one in favor of each; 2d, whether there was a want of good faith, reasonable skill, or ordinary diligence, on the part of the defendant, in relation to the commencement or termination of the suit in Georgia against Carson; 3d, whether any loss or damage resulted to the plaintiff from the commencement, compromise, or dismissal of that suit, or from any other act of the defendant in relation to the claim of the plaintiff against Carson.

If the demand on which that suit was founded, was a joint one, in favor of Robinson & Brooks against Carson; and if Robinson had authorized Brooks to commence it, and had agreed to pay him for his trouble and half his expenses; and if Brooks compromised and dismissed it without the assent of Robinson, he is liable to Robinson for a moiety of what he actually realized from the suit, unless it be proved that Robinson’s interest or share in the joint demand had been in some way previously discharged or satisfied.

If the demand on which the suit was founded, was a sevei'al one — that is, if Brooks had paid money for Carson as his surety, and Robinson had paid money for Carson as the co-surety of Brooks; and if, upon a sufficient consideration, Brooks agreed to act for Robinson in securing Robinson’s claim against Carson, he thereby became the agent of Robinson, and bound as such to good faith, reasonable skill, and ordinary diligence in the exercise of his functions, and, consequently, liable for injuries to his employer, occasioned by the want of such faith, skill, or diligence. — Story on Agency, §§ 182, 183, 186, 207, 208; Gliddon v. McKinstry, 25 Ala. 246.

If everything which Brooks, as agent for Robinson, has done in relation to Robinson’s claim against Carson, was assented to, or has been ratified by Robinson, he cannot recover for anything done by Brooks as his agent. So, if no loss or damage has resulted to him from what Brooks did, he cannot recover. For instance, if it be proved that Robinson’s claim against Carson was paid or discharged in any way before the commencement of the suit against Carson in Georgia, Robinson is not entitled to recover. But the mere declarations of Carson to Brooks, or to bis attorney, do not, in tbe present suit, prove any such payment or discharge. They are not admissible for any such purpose against Robinson. — Story on Agency, §§ 222, 226-235; Addison on Con. 612; Nicholls v. Wilson, 11 Mees. & Welsby, 106.

We do not intend to intimate any opinion as to the facts, nor how the jury should find as to them. That is a matter for the jury to determine, under proper instructions. As there is some conflict in the evidence as to some of the material facts, the court below erred, in charging the jury that, if they believed the evidence, they must find for the defendant. A general charge, that one party or the other is entitled to a verdict, is never propei’, where is any conflict of evidence as to a material fact. — Browning v. Grady, 10 Ala. 999; Boyd v. McIvor, 11 Ala. 822.

All that we have above said must be confined to the case as presented by the bill of exceptions now before us. Upon the case as thus presented, there is error in the charge; and for that, the judgment is reversed, and the cause remanded.