[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 503 The evidence shows without dispute that the plaintiff bank is a holder in due course of the note sued on. The question for decision is whether the defense of accord and satisfaction was supported by the evidence. That defense depended upon proof, to be made by the defendant, that Elliott's transaction with defendant, involving the cancellation of the purchase and sale of the machinery, the return of the tractor by defendant to Elliott, and Elliott's undertaking to return the two purchase-money notes to defendant, was in the capacity ofagent for the plaintiff bank. And defendant's contention is that the testimony of Elliott, on his direct examination, tends to show, by reasonable inference, "that Elliott was authorized by the bank to take the tractor back, and the bank would look to its customer, Elliott, and not to Lee for payment of the note," and, further, "that the bank had a mortgage on the tractor, worth $1,800 when returned, and that it [the bank] authorized Elliott to take possession of the tractor for the bank, which Elliott did, and that the bank afterwards got the tractor and sold it."
Very clearly Elliott cannot be held to have been the agent of the bank by estoppel, since Elliott did not profess to represent the bank, and defendant had no reason to believe, and in fact no belief, that Elliott was acting other than for himself. It is clear also that there was no express authorization of agency. It results, therefore, that defendant must rely upon an agency by implication from the conduct and mutual dealings of the alleged principal and agent with respect to the transaction in question.
"It is often difficult to determine upon general principles whether any agency exists; rather it must be determined from the facts and circumstances of the particular case; and, if it appears from such facts and circumstances that there was at least an implied intention to create the relation, it will by implication be held to exist." 2 Corpus Juris, 436, § 32.
"Agency, like any other controvertible fact, may be proved by circumstances. It may be inferred from previous employment in similar acts or transactions; or from acts of such nature, and so continuous, as to furnish a reasonable basis of inference, that they were known to the principal, and that he would not have allowed the agent so to act unless authorized. In such cases, the acts or transactions are admissible to prove agency. But, in order to be relevant, the alleged principal must, in some way, directly or indirectly, be connected with the circumstances. The agent must have assumed to represent the principal, and to have performed the acts in his name and on his behalf." Hill v. Helton, 80 Ala. 528, 533, 1 So. 340, 344.
Apart from the principle of estoppel, operating in favor of a third party who has relied upon the appearance of agency for which the putative principal is responsible the relation of principal and agent arises solely from the mutual intention of the parties to create such a relation; that is, to authorize one to act for and in behalf of the other, so as to bind the other by his acts. 2 Corpus Juris, 432, § 26.
A majority of the court, composed of Justices SAYRE, THOMAS, MILLER, and BOULDIN, are of the opinion, and so hold, that whether or not Elliott was the authorized agent of the plaintiff bank, and was acting for and bound the bank as his principal, when he took back the tractor and agreed with defendant to release and deliver up the note in question, was a question for the jury under the evidence, and that the general charge for defendant was properly refused.
The majority hold, also, that the trial judge properly instructed the jury as set out in the statement of the case, supra, that the allowance of defendant's opinion testimony as to the market value of the tractor, if error, was error without injury, not affecting the merits of the issue, and that the judgment of the trial court should be affirmed.
The writer, with whom concur the CHIEF JUSTICE and Justice GARDNER, dissents as expressed in the opinion below.
Affirmed. *Page 504
SAYRE, THOMAS, MILLER, and BOULDIN, JJ., concur.