The Birmingham age-herald., 1906-05-11
THE SUPREME COURT.
Head Notes of Cases Just Handed
 Down By the Court.

Montgomery, May 10-(Special. 1.-The su- preme court today handed down the fol- lowing headnotes of cases having been submitted:
 By Weakley, c. J.-Butterick Publishing company vs. Cranford Mercantile com pany, appeal from Walker law and equity court.
 1. When suit is brought upon an account conceded to be correct and the defense is set off, it is an error to exclude a con tract between the parties offered by the plaintiff to be proven which would show, or tend to show the alleged set off was not good. Reversed and remanded Opin- ion by Weakley. c. J., Tyson. Simpson and Anderson concurring.
 By Weakley c. J-Schloss & Kahn vs. J. w. Mcintyre ct als, appeal from Hous- ton circuit court.
 1. The defendants, commissioners of a dispensary at Ashford, established under statute which is unconstitutional, are not individually liable for the price of liquors purchased for the dispensary.
 ?. The basis of liability against an agent who has made an unauthorized contract is that he has been guilty of some fraud, or has made a false statement or has stated as true what he did not know to be true. emitting to give information to the other party that would enable him to judge of the agents authority. When the agent is guilty of no wrong and when the other party has all the Knowledge the agent possesses the agent is not liable.
 2. When all the facts are known to both parties and the mistake as to liability of the principal is one of law, there is no ground to charge the agent upon a con tract which does not bind his supposed principal Affirmed.
 Opinion by WealSley. c. J.. Tyson, Simp- son and Anderson, J. J., coneurring.
 By Weakley, C. J.-M. H. Collins vs. Western Union Telegraph company ap- peal from Birmingham city court.
 1. In a suit against d telegraph com pany for failure to deliver promptly a message that was. however, delivered to the sendee. such delivered telegram is ad- missable in evidence, and 1t is not neces- sary to produce account for the ab- sence of the message as lodged with the company for transmission. For a refusal tn admit the message the judgment will be reversed.
 2. A demurrer is properly sustained to count of the complaint which fails to connect the plaintiff with the sending of the message or to show any duty to him. Reversed and remanded.
 Opinion by Weakley. C. J.. Tyson, Simp- son and Anderson. J. l.. concurring.
 By Weakley, c. J.-Augustine M. Odom, executrix, ys. John J. Moore, appeal from Birmingham city court
 1. When a personal representative of a solvent estate, after suit brought upon a claim that has been duly presented. voluntarily makes a final settlement, pays away the assets and procures an order of discharge from the probate court. this does not bar the further maintenance of the action.
 2. When a plea sets up that personal representative has here been discharged and has paid over the assets as provided by law, a replication that the estate was solvent and that the order of discharge was voluntarily obtained by the defend- ant. upon final settlement, is good and Is no departure from the complaint.
 3. When no charge was asked or ob- jection made in the trial court raising the question of variance that question will not be considered on appeal.
 4 When the evidence is conflicting and the verdict for a smaller amount than might have been allowed this court will not reverse the action of the trial court, requiring a new trial. Tennessee Coal company vs. Lacy, 31 Sou. Rep. 10a, fol- lowed. Affirmed.
 Opinion by Wealxley. c. J., Tyson, Simp- son, Anderson. J. J., concurring.