This was a suit by appellee claiming damages as for deceit in the sale of an automobile by appellant to appellee. Code 1923, § 5677; and see Code 1923, §§ 5676, 8049. There were two counts in the complaint, to which the pleas of the general issue and the statute of limitations of one year were interposed. To this latter plea, that the action was barred by the statute of limitations, the appellee filed a replication to the effect that he did not know, etc., of the fraud practiced upon him until within less than one year before the suit was filed. Upon issue joined upon the plea of the general issue and appellee's replication, the case was tried.
The crux of appellee's case, in substance, supported by the evidence offered in his behalf, was that one Jimmie Nunn, while acting within the line and scope of his duties and employment as appellant's agent, represented to appellee that a certain automobile was a new "Chrysler Imperial 1928 Eighty Model, Sedan," when in fact said automobile was not a 1928 model, etc., and by means of such false representation appellant's agent, knowing, etc., at the time of its falsity, sold *Page 299 said automobile to appellee. What we are trying to say is that the case essentially hinged around the question of whether or not appellant's agent, Nunn, as an inducement to the sale of the automobile in question to appellee, represented same to be a 1928 model, when it was not such model. Appellee's testimony tended to support his contention.
But the sale of the automobile was consummated on June 15, 1927, and this suit was not begun before April 25, 1929. So, admittedly, the action is barred by the aforementioned statute of limitations (Code 1923, § 8949), unless there are shown facts from which the jury might infer that appellee's replication was proved.
It seems to be settled in this state that, so far as concerns the knowledge of an agent that will bind the principal, "the fundamental requirement is that such knowledge on the part of an agent to bind his principal 'must be limited to such knowledge or information as comes to the agent in transacting the business of his principal.' Central of Ga. Ry. Co. v. Joseph, 125 Ala. 319, 28 So. 37. This is a simple rule, easy of application, and just in its results.
"Where the agent's knowledge is of this character, it is constructive notice to the principal entirely regardless of the principal's actual knowledge. Wiley v. Knight, 27 Ala. 346. This is usually explained by saying that the law conclusively presumes that the agent has in fact communicated his knowledge to his principal. We think, however, that the better and more logical explanation is that with respect to the given transaction the agent is in law identified with his principal; that knowledge that comes to the agent, while acting in such matter for his principal, would have come to the principal had he been acting for himself; and that, as a rule of policy and justice, he must be equally charged therewith. Sooy v. State,41 N.J. Law, 395; Houseman v. Girard Ass'n, 81 Pa. 256-262.
"But on either theory, the rule is not a rule of evidence merely, as is sometimes declared, but a rule of substantive law." Hall Brown Woodworking Machine Co. v. Haley Furniture Mfg. Co. et al., 174 Ala. 190, 197, 56 So. 726, 728, L.R.A. 1918B, 924.
Or, as emphasized by Mr. Justice Somerville, in the opinion in the case just above quoted from and cited: "Constructive notice to the principal through the actual knowledge of the agent is not a rule of evidence, but one of substantive law. Given notice to or knowledge of the agent, received while so acting, and the principal is conclusively bound by it; not because he ever knows it in fact, because his actual knowledge is utterly immaterial, but because as to the thing the agent is doing the agent is in law the principal, and the principal is in law the agent. Their legal identity is complete. Nor can it matter, in this aspect of the rule, whether the agent has, or has not, private reasons or interests which make it unlikely or even certain that he will not inform his principal, as correctly ruled in First Nat. Bank v. Allen, 100 Ala. 476,14 So. 335, 27 L.R.A. 426, 46 Am. St. Rep. 80."
The application of the legal principles we have quoted, to the facts shown by this record, has seemed of that importance that the court has read the entire evidence, bearing upon the question involved, sitting en banc. It would prolong our opinion to too great an extent to discuss same in detail; so we merely state our conclusions.
It may be, that the facts shown, that the sale of the automobile was consummated on June 15, 1927, and that there was thereafter, on, to wit, June 22, 1927, written for, and delivered to, appellee, at his instance, an insurance policy covering liability, etc., on said car, in which it was described, as here pertinent, as a model 1927 sedan, would only, in connection with the testimony offered on appellee's behalf, serve to make the question of whether or not appellee was at that time (i. e., June 22, 1927) put on notice that said automobile was not a 1928 model, as it had been represented to him, etc., to be, in such manner that the bar of the statute of limitations would begin to run on that date, a question for the jury's decision.
But it appears that a license tag was procured for the said automobile in October, 1927. As to this, there is a slight, though, as we view it, immaterial, conflict in the evidence. Appellee's witness James Klepsig, on cross-examination testified to facts which showed that he was his father's (appellee's) agent in the matter of assessing the automobile in question for taxes, procuring license tag, etc., at the time mentioned. Appellee, testifying as a witness in his own behalf, tends to qualify, or limit, or deny, James' agency in the premises. But appellee states, in substance, that James was sent along, upon the occasion in question, with Jimmie Nunn, for the purpose of getting said tag, etc. In either view of what the undisputed testimony shows, it appears that appellee'sagent, for the purpose in hand, was, if not James Klepsig, then Jimmie Nunn. Appellant was in no wise interested or concerned in the getting of the said tag, etc. And it appears without conflict that, at this time, it was disclosed to appellee'sagent that the automobile in question was not a model 1928.
The conclusion is therefore inescapable, under the rules of law we have quoted above, that, at least as early as October, 1927, appellee had notice, etc., through his agent duly qualified in the premises, of the alleged fraud that had been practiced upon him. And this is shown by the undisputed testimony. *Page 300
It follows, waiving a consideration of the numerous other assignments of error, argued and insisted upon, some of which we think well taken, that the trial court erred in refusing to give, at appellant's request, the general affirmative charge in its favor, as for a total failure of the evidence to sustain appellee's replication to the plea of the statute of limitations, the truth of which is obvious from the record. For this error, the judgment is reversed, and the cause remanded.
Reversed and remanded.