The appellee brings this suit to recover the proceeds of cotton, which was sold by the appellants as commission merchants. There seems to be no controversy as to the ownership or sale of the cotton. The disputed question is, in what capacity did Johnson Martin, to whom defendants accounted for the proceeds, act — whether he shipped the cotton, merely as depot agent, or whether as agent of the plaintiff under an arrangement between the defendant and Martin, by which they advanced him money to control the shipments of cotton ?
The plaintiff was allowed, against the objection of defendants, to prove by his own testimony, the instructions in regard to the sale of the cotton, which he requested Martin to write the defendants, and his agreement to ship it accordingly. Martin was dead at the time of the trial. The statute abrogates, in civil suits and proceedings, the common law rule, which excludes a witness, because he is a party, or interested in the issue tried, with a limitation, “that neither party shall be allowed to testify against the other, as to any transaction with, or statement by, any deceased person whose estate is interested in the result of such suit, or when such deceased person, at the time of such statement or transaction, acted in any representative or fiduciary relation whatsoever to the party against whom 'such testimony is sought to be introduced.” — Code, 1876, § 3058. The purpose of the limitation is, to exclude a party to the transaction or statement from rendering it in his own interest after the death of the other party. It is not an interest in the judgment as evidence, which disqualifies a party as a witness ; but a direct and immediate conflict of interest involved in the issue to be tried. The effect of the. evidence must be to diminish or enlarge the rights of the decedent’s estate. The presumption being in favor of competency, it is incumbent on the party affirming the incompetency of the witness to show, that the testimony, sought to be introduced, falls within the statutory exclusion. — Ala. Gold Life Ins. Co. v. Sledge, 62 Ala. 566; Hendricks v. Kelly, 64 Ala. 388; Dismukes v. Tolson, 67 Ala. 386.
At the time the objection to the testimony was made and *533ruled on, it did not appear, nor was it proposed to show, that Martin’s estate had any interest in the result of the suit, or that he had sustained any representative or fiduciary relation to the defendants. We can not consider the evidence subsequently introduced, for the purpose of putting the court in error as to a previous ruling, which was not erroneous when made, as the case then appeared. If it be conceded, that the incompetency of the plaintiff, to testify to a transaction with, or statement by Martin, was disclosed by the evidence subsequently introduced, the objection should have been made in the Circuit Court by a motion to exclude, based on such evidence. It was not the duty of the court, ex mero motu, to exclude the testimony.
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 indirecly, be connected with the circumstances. The agent must have assumed to represent the principal, and to have preformed the acts in his name and on his hehalf. The testimony of the witness,' Allison, tended to prove nothing more, than that Martin was engaged in the business of shipping the cotton of planters in the neighborhood of Stevenson .other than the plaintiff, and receiving and controlling the proceeds, and that this was generally known. It is not pretended, that he had previously shipped or controlled any cotton, as agent of the plaintiff. From the facts, that Martin "was engaged in the business of shipping cotton, separate from his duties of depot agent, and had controlled the cotton of other planters, it does not follow, and can not be reasonably inferred, that the plaintiff authorized him to ship and control the. cotton in question as his agent. Acts done by Martin as the agent of other planters are not admissible and relevant to prove agency in the particular shipment of the plaintiff’s cotton, in the absence of other evidence of authority, express or implied from circumstances, furnishing a ground of reasonable inference of assent, adoption, or acquiescence: — Fisher v. Campbell, 9 Por. 220.
The declarations and admissions of an agent are admissible against, and bind his principal, when made during the continuance of the agency, and while in the discharge of his duties as ’such, respecting a transaction then depending, and so contemporaneous with the main fact, or subject of the agency, *534as to constitute a part of the res gestm. “ The rule admitting the declarations of an agent is founded upon the legal identity of the agent and the principal; and therefore they bind only so far as there is authority to make them.” Declarations, mere narrations of past occurrences, are not admissible. — Danner L. & N. Co. v. Stonewall Ins. Co., 77 Ala. 184; Whar. Ev. § 1173; 1 Greenl. Ev. §§ 113, 114. Preliminary proof of authority to make the declarations is requisite to their admissibility and binding effect. The letters and written statements of Martin, offered by the defendants, are but his declarations. The evident purpose of their introduction was to show either the agency and the extent of authority, or a purchase of the cotton and payment thereof. They are not admissible for either purpose. Agency and the extent of authority must be established by evidence, other than the acts and statements of the supposed agent. None of the letters or statements prima faeie represent any transaction performed by Martin as agent of the plaintiff, and while in the discharge of his duties as such agent. With two exceptions, none of them allude to the cotton in controversy; and those, which make any reference to it are narratives of past occurrences, and declarations of a purchase and payment. They do not come within the rule of admissibility.
By the first charge, the defendants requested the court to instruct the jury substantially, that they are exempted from liability to the plaintiff, if he placed the cotton and the bills of lading in the possession of Martin, and Martin shipped the cotton to the defendants, and sent them.the bills of lading, and thereupon they in good faith and in ignorance of Martin’s want of authority to sell the cotton, advanced to him its value, though the extent of his authority was to ship, and send the bills of lading, to the defendants. We presume, the proposition of the charge is founded on the principle, that on the facts stated, the defendants are' leona fide purchasers without notice. Without considering the negotiable character of a bill of lading, or to what extent the doctrine of leona fide purchasers applies to such instrument, it suffices, that the bills of lading show on their face, that the cotton was received from the plaintiff by Martin as agent, presumptively for transportation, and was consigned to the defendants. Mere possession of them, and their transmission by Martin to the defendants, under the circumstances, did not authorize them to infer, that he had any right to the cotton, or any authority to receive advances on it. The bills of lading were forwarded to the defendants, who were the proper holders, and constituted their authority to receive the cotton. Inquiry into the true character of the transaction is not precluded, because they may have *535ignorantly and in good faith advanced money to Martin. — Pollard v. Vinton, 105 U. S. 7. The instruction, however, does not rest the exemption from liability on apparent ownership arising from possession, but on the ground of an agency to ship, and forward the bills of lading. In this respect, the charge ignores the settled rule, that mere ignorance of want of authority is not sufficient to protect a party dealing with an agent, though he may have innocently paid value. He is bound at his peril to ascertain the extent of authority. Agency to ship the cotton, and forward the bills of lading to the consignees, does not purport to carry authority to receive advances on the cotton. Such agency and the authority of the agent terminate, when the cotton is shipped and the bills of lading are forwarded.
The only mode, in which it is claimed that defendants paid Martin for the cotton is, by crediting the proceeds of sale in his account for money advanced on this and other cotton to enable him to control shipments. While an agency to ship and sell may imply authority to receive the proceeds of sale, it will not extend to authority to appropriate such proceeds to the payment of an individual indebtedness of the agent. The jury might have inferred from the second charge requested by the defendants, when referred to the evidence, that a payment in such manner would bind the plaintiff. The charge is calculated to mislead.
The third charge is abstract, and asserts an incorrect proposition of law. Though the plaintiff may have agreed, as part consideration of the mortgage executed in May, 1882, by Martin, to pay a mortgage to Hurst, which was a prior incumbrance on the property, a branch of such agreement would not constitute a valid defence to the present suit. If the plaintiff, instead, of a voluntary payment of the mortgage debt to Hurst, suffered a foreclosure for some real or supposed necessity to protect and quiet his title, and purchased the property at the foreclosure sale for an amount sufficient to pay the debt, and paid the purchase money, the debt is discharged and the mortgage satisfied — there is a substantial performance of the agreement. The mortgagor’s equity of redemption under the second mortgage would not be defeated or impaired.-
Affirmed.