If the ex parte showing made on the petition for rehearing is correct, and at this time I am willing to so concede, I, like Mr. Justice Cothran, was misled as to the nature of the claim filed in Mrs. Neely's behalf against the estate of Mr. Brice. The record before the Court certainly convinced me that Mrs. Neely had filed a claim for the money collected by Brice on the Love note and mortgage. The copy of the claim now presented to the Court shows that she made claim, not for the amount of the collection, but for the papers themselves.
It does not follow, however, because of the error into which some of the justices have fallen, due to the failure of the appellant to see that the record for appeal was properly made up, is just ground for ordering a rehearing of the cause. *Page 345
When the case was heard, Chief Justice Watts and Associate Justice Stabler were absent on account of illness. The Court was composed of Justices Cothran, Blease, and Carter, and Acting Associate Justice, Hon. J. William Thurmond. Justice Carter, who was assigned to write the opinion of the Court, only held that the report of the Referee and the decree of the Circuit Judge, which confirmed that report, should be sustained. The writer, in his concurring opinion, while agreeing with the holdings of the Special Referee and the Circuit Judge, went into matters other than those mentioned in the report and decree as additional grounds for sustaining the judgment of the lower Court, among them the ratification of Brice's action by Mrs. Neely when she filed the claim for the money collected by Brice, as it was thought the record established. In the opinion of the writer, Mr. Acting Associate Justice Thurmond concurred. The writer and Mr. Acting Associate Justice Thurmond concurred in the opinion of Mr. Justice Carter.
It will be seen, therefore, that, while a majority of the justices, who participated in the hearing of this cause, upheld the decision of the Circuit Court, a majority of the justices did not decide the case on the question of ratification of Brice's acts by Mrs. Neely in filing her claim against Brice's estate.
I still adhere to the principles of law as to ratification, announced in my concurring opinion, although I am willing to concede on the showing made in the petition for rehearing that they are not applicable to the case at bar.
In this connection, I think, however, that the claim, which it now appears Mrs. Neely filed against Brice's estate, is additional proof that Mr. Brice was the agent of Mrs. Neely to lend her money and to make collections thereon; and, if he was not the agent in the particular matter of the Love paper, unfortunately Mrs. Neely allowed him to appear as her agent for that purpose. The claim filed against the estate sets forth that at seven different times, beginning on *Page 346 January 8, 1916, and ending on June 6, 1922, Mr. Brice collected from various persons several amounts of money, and each of the items says, "Paid J.S. Brice by (naming debtor), for Mrs. M.M. Neely."
I have again gone carefully over the record in this case. I find certain testimony given by Mr. John A. Neely, who, as agent for his mother, filed the claim against Brice's estate, to which I have not formerly called attention, that I think is of especial significance to establish the agency of Mr. Brice for Mrs. Neely. On cross-examination by Mr. Gaston the witness was asked this question:
"He (Brice) did make collections of interest and principaland remitted to her and then she would be satisfied. That had been his custom to collect money from all his clients and remit to the ones he got the money from. And he remittedto your mother? (Italics added.)
To the stated question, the witness made the following answer: "Yes; he had that authority." (Italics added.)
Even if a rehearing should be granted and additional testimony allowed on the question of ratification by Mrs. Neely, I do not see how it could possibly change the result of the cause.
MR. ACTING ASSOCIATE JUSTICE THURMOND concurs.