tion by the fact that he is merely occupying | ing. They challenge the attention of the time while waiting for a street car. For other cases, see Negligence, I. c, 2, in Dig. 1-52 N. S. Evidence loquitur. fall of awning - res ipsa public and invite and induce closer inspection of the dealer's wares. It is not expected that all who stop to gaze should become immediate purchasers, but all are invited therefore that the plaintiff was upon the that some may be persuaded. We hold 3. The fall of an awning over a sidewalk to the injury of a pedestrian, under a wind pressure of only 26 miles an hour, estab-3-foot strip as a licensee by the express or lishes negligence on the part of the owner in maintaining it. For other cases, see Evidence, II. h, 1, f, in Dig. 1-52 N. S. Madigan, J., delivered the opinion of the court: An action for personal injuries resulting from the falling of an awning in front of store occupied by defendant under a lease. By agreement the case was reported to the law court to determine the question of liability, the damages having been fixed by the jury at $500. The defendant was the proprietor of a retail boot and shoe store on Monument square, in Portland, near the transfer station of the street railways. Between the front of the store and the legal limits of the highway was a strip of land 3 feet wide paved and surfaced as was the sidewalk on which it abutted, with no visible mark on the surface to indicate to the public that the strip was not a part of and included within the legal limits of the public street. While the plaintiff and a lady friend were waiting for a car, they stepped to the defendant's window to inspect his display of goods, and were standing on the 3-foot strip when the awning fell. Neither the plaintiff nor her companion had any intention of entering the store or making purchases of the defendant. implied invitation and allurement of the defendant, and that he consequently owed to her the duty to see that his premises were in a reasonably safe condition. Moore v. Stetson, 96 Me. 203, 52 Atl. 767; Patten v. Bartlett, 111 Me. 409, 49 L.R.A. (N.S.) 1120, 89 Atl. 375; Bennett v. Louisville & N. R. Co. 102 U. S. 577, 26 L. ed. 235, 7 Am. Neg. Cas. 349. The strip, being so surfaced and finished that to all intents and purposes it was a part of the street intended for foot pas. sengers, extended to the public an implied invitation to use it as such. Holmes v. Drew, 151 Mass. 578, 25 N. E. 22; Sweeney v. Old Colony & N. R. Co. 10 Allen, 368, 87 Am. Dec. 644. on. In Holmes v. Drew the plaintiff was injured by defect in what she believed was a part of the sidewalk, but which was in fact private land of the defendant abutting thereThe court says the jury might have inferred from the facts stated that the defendant laid out and paved the sidewalk on her own land in order that it should be used by the public as a sidewalk or street. and allowed it to remain apparently a part of the street that was intended to be used by foot passengers. "This would amount to an invitation to the public to enter upon and use as a public sidewalk the land so prepared, and the plaintiff so using it would have gone upon the defendant's land by her implied invitation, and she would owe to him the duty not to expose him to a dangerous condition of the walk which reasonable care on her part would have prevented. The ground of the defendant's liability is not her obligation to keep a way in repair; but her obligation [is] to use due care that her land should be reasonably safe for the use which she invited the plaintiff to make of it." In Sweeney v. Old Colony & N. R. Co. the plaintiff was using for his own purpose a private crossing over the tracks of the defendant. The defendant's flagman indicated to the plaintiff that the way was open to passage, and he was injured when responding to such notice. The court held that, though he was not upon the defendant's property for the purpose of transacting business with it, but solely for his own purposes, he was nevertheless an invited licensee, and therefore the defendant was The defendant contends that the plaintiff was, at most, a mere passive licensee to whom he owed no duty except not to do wanton injury. McClain v. Caribou Nat. Bank, 100 Me. 437, 62 Atl. 144. With this we cannot agree. The window displays by abutting retail salesmen are among the most common and effective methods of advertis-' liable. Chenery v. Fitchburg R. Co. 160 Mass. 214, 22 L.R.A. 575, 35 N. E. 554: The test is whether an intelligent and prudent person would understand there was an invitation to use private land as a public way. Binks v. South Yorkshire R. & R. D. Co. 32 L. J. Q. B, N. S. 26: "There might be a case where permission to use land as a path may amount to such an inducement. as to lead the persons using it to suppose it a highway, and thus induced them to use it as such." Davis v. Central Cong. Soc. 129 Mass. 367, 37 Am. Rep. 368: "It makes no difference that no pecuniary profit or other benefit was received or expected. ... The fact that the plaintiff comes by invitation is enough to impose on the defendant the duty which lies at the foundation of this liability, and that... the defendant in giving the invitation was actuated only by motives of friendship and Christian charity." Bennett v. Louisville & N. R. Co. 102 U. S. 585, 26 L. ed. 235: The public were invited to use the premises for the purpose to which they had been appropriated by the defendant. "It was therefore" the defendant's duty to take such precautions from time to time as ordinary care and prudence would suggest to be necessary for the safety of those who had occasion to use the premises for the purposes for which they had been appropriated by the company, and for which, with its knowledge and permission, it was commonly used by the public." In the case at bar the plaintiff was upon the strip as an invited licensee of the defendant, although neither she or her companion had any intention of entering the defendant's store or transacting business with him. Neither can it be said that she forfeited her rights as such licensee by lingering on said strip while waiting for a car. The easement of the public on highways is not restricted to such narrow limitation. One does not become a trespasser or forfeit ALABAMA SUPREME COURT. rights in the street as a traveler by stopping to converse with a friend while waiting for a car or any other harmless purpose. The mere fact that waiting accommodation was provided by the street railway for the convenience of its patrons would not deprive of their rights the large number of patrons who prefer the fresh air on the sidewalk. The defendant claims the awning fell as the result of a violent gust of wind against which he could not be expected to provide, and that the awning was substantial and carefully inspected. At no time during the day did the velocity of the wind, as shown by the official record, exceed 26 miles an hour, and it goes without saying that an awning which would fall under such a strain was most dangerous to the public. The supports or framework was attached to the building by lag screws driven into soft pine plugs, which in turn were driven into the masonry. The pine plugs expanding and contracting according to the weather must loosen, and require careful inspection. The only examination apparently made of the awning was that of the clerk in raising and lowering it. The very circumstances of this accident seem to establish the plaintiff's claim that the awning was insecure and that the defendant failed to use proper care to make it reasonably safe. "When the thing which has caused an injury is shown to be under the management of the party charged with negligence, and the accident is such as in the ordinary course of affairs does not happen if those who have the management use proper care, the accident itself affords reasonable evidence, in the accident itself of an explanation [by the party charged], that it was caused by lack of proper care by the party charged with negligence." Chicago Union Traction Co. v. Giese, 229 Ill. 260, 82 N. E. 232. Judgment for plaintiff for $500 as found by jury. to be taken from the possession of another, who, in case his claim depends on mortgage, HALL & BROWN WOODWORKING MA- | fails to state that fact in his affidavit, as CHINE COMPANY, Appt., V. HALEY FURNITURE & MANUFACTURING COMPANY et al. and required by statute, will not be permitted to offer evidence that it depends upon a mortgage, whether it is overdue or not. For other cases, see Replevin, II. a, in Dig. 1-52 N. S. SHEFFIELD TRUST COMPANY, Inter- Principal and agent vener. Detinue adverse claim failure to state facts required by statute effect. 1. One laying claim to property sought knowledge of agent notice to principal. 2. Knowledge obtained by one who be Note. As to whether principal is chargeable with knowledge of agent ac quired prior to the agency, see annotation following this case, post, 929. comes a director of a trust company upon June 12th. Only about one third of the its formation, while negotiating a loan to purchase money was to be paid on delivery, be made by the company when formed, is and to secure the payment of the balance not binding on the corporation when it | the vendor retained the title and possessory comes into existence and the loan is made. right in itself until the price of the maFor other cases, see Notice, II. a, in Dig.chinery was fully paid, as shown by the 1-52 N. S. Same presumption of notice. 3. If knowledge of a fact gained by an agent before his employment was present in his mind at the time he was transacting business for his principal, the principal will be presumed to have notice thereof, unless it is overcome by evidence to the contrary, For other cases, see Notice, II. in Dig. 1-52 N. S. (November 23, 1911.) A PPEAL by plaintiff from a judgment of the Circuit Court for Colbert County in favor of intervener in an action brought to recover possession of certain machinery. Reversed. The facts are stated in the opinion. Messrs. Emmet O'Neal and Kirk, Carmichael, & Rather for appellant. Messrs. Almon & Andrews, for appellee: Affidavit and bond for title of property being made for the benefit of plaintiff, he may waive defects or irregularities in both or either. Rhodes v. Smith, 66 Ala. 174; Lehman v. Warren, 53 Ala. 535. Notice to an agent, to bind his principal, must have been acquired by the agent during his employment, i. e., while he is actually engaged in the prosecution of his duties as agent, and not at a time antecedent to the period of his agency. Goodbar v. Daniel, 88 Ala. 590, 16 Am. St. Rep. 76, 7 So. 254. Somerville, J., delivered the opinion of the court: This is an action of detinue by the appellant against the Haley Furniture & Manufacturing Company and W. T. Archer, assignee. The appellee duly intervened as claimant of the property sued for, filing his affidavit of claim, and the appropriate issue was made up, and the trial proceeded thereon. The affidavit did not state the nature of the right of the claimant as required by Code, § 6043. The bill of exceptions sets out all the evidence, but we here state only such portions thereof as are necessary to illustrate the material questions which we are called upon to consider. The subject-matter of the suit is a lot of machinery sold by the plaintiff to said Haley Company in February, 1906, and delivered in April following, except one item which reached the consignee as late as about written contract and notes in evidence. This written contract was filed for record on August 3, 1906, and in the meantime, on June 18, 1906, the claimant Sheffield Company (now appellee) loaned to the defendant Haley Company $6,000, the latter executing to the former as security therefor a mortgage deed conveying certain property in the city of Sheffield described as "all of block numbered four hundred and fortyeight (448), together with all buildings and improvements thereon, and all machinery and appliances thereat, together with the appurtenances." It does not appear that this mortgage has ever been foreclosed. The tendency of the testimony of the two witnesses, C. L. Haley and J. J. Challen, introduced by the plaintiff, was to show that in the loan transaction of June 18th, in which the Haley Company secured the loan of $6,000 from the Sheffield Trust Company, the trust company was represented by one J. W. Worthington, who was a director and stockholder, but not an officer, in said trust company; that said Worthington was at the same time president of the Sheffield National Bank; that said witnesses, who were respectively president and secretary and treasurer of the Haley Company, nego tiated with said Worthington in the months of January, February, March, and April, 1906, for the purpose of getting a loan for the Haley Company; that Worthington promised to get such a loan for them, and stated that he would secure it from a trust company about to be organized; that during these negotiations in January and February it was explained to Worthington that the loan was to be used in the purchase of the machinery in controversy; that the contract of sale between the plaintiff and said Haley Company, one of the terms of which provided for the reservation of the title and right of possession until the purchase money was paid, was exhibited to Worthington and its terms gone over with him, and then left with him for several days for his inspection; that the Sheffield Trust Company was not organized and had no existence until May 26, 1906; and that no conversation with Worthington, nor information to him as to the status of the title to the machinery, occurred on or after May 26, nor any later than March, 1906. For the claimant, all of the testimony as to information given him concerning plaintiff's claim to the machinery is vigorously denied by Worthington, as well as any knowledge whatever on his part of such a, the mortgage, and by request for the claim, either before or during his agency. affirmative charge. The record presents not With respect to statutory claim suits, merely a defect in the affidavit, but a variit has long been the settled law in Ala-ance between pleading and proof. bama that the affidavit and bond required of the claimant are jurisdictional, and cannot be dispensed with even by consent of parties, express or implied. Mobile L. Ins. Co. v. Teague, 78 Ala. 147; House v. West, 108 Ala. 355, 19 So. 913. 2. On motion of the claimant, the trial court excluded all the testimony of the two witnesses Haley and Challen as to conversations and transactions between them and J. W. Worthington relative to the property sued for, and relative to their negotiations When the claim interposed is based on with him for a loan from the claimant coma mortgage or lien, the statute (Code 1907, pany; the ground of objection being, sub§ 6043) expressly requires that "the claim-stantially that any notice to Worthington ant must state in his affidavit the nature of plaintiff's claim, before the organization of the right which he claims;" and the same of the claimant company, and hence before section further requires that, in case the his agency for it began, was not notice to claim is sustained, the amount of it, whether the claimant, nor binding on it. The quesdue or not, must be ascertained, and the tion presented by this ruling is the vital plaintiff may pay to the claimant the question in the case. amount so ascertained, and of course eliminate him from any "further participation or interest in the proceedings." From its very nature this requirement is not jurisdictional, but there can be no possible doubt that it is restrictive in its character and purpose, and that a claimant who fails to thus propound the nature of his claim cannot be allowed to support it by evidence of either mortgage or lien. This conclusion was announced by this court in the case of Ivey v. Coston, 134 Ala. 259, 32 So. 664, cited with approval in Bennett v. McKee, 144 Ala. 601, 38 So. 129. The introduction in evidence of the mortgage in support of the claimant's claim was objected to on the ground of its irrelevancy to the issue, and, no foreclosure being shown, the objection should have been sustained. And it necessarily follows from this that the court should have given the general affirmative charge for the plaintiff as requested. It is a mistake to assume, as do counsel for appellee in their brief, that by "a claim based on a mortgage" the statute means only a mortgage not overdue. It cannot be thus restricted. On the contrary, the statute plainly applies to any mortgage under which there remains to the mortgagor the right of redemption; the intent being to give the plaintiff the benefit of such right if it has not been foreclosed. And, even in a court of law, a tender of the debt by the mortgagor after the law day, if made before seizure of or demand for the chattels, revests the legal title in the mortgagor. Maxwell v. Moore, 95 Ala. 166, 36 Am. St. Rep. 190, 10 So. 444. By a long line of decisions, this court is thoroughly committed to the rule that knowledge acquired by an agent prior to his agency, or in regard to matters outside the line of his duty, or while pursuing his own or some other person's business, is not notice to his principal of such fact or facts, and is not binding upon him. Mundine v. Pitts, 14 Ala. 84; Pepper v. George, 51 Ala. 195; Reid v. Bank of Mobile, 70 Ala. 211; McCormick v. Joseph, 83 Ala. 403, 3 So. 796; Wheeler v. McGuire, S. & Co. 86 Ala. 398, 2 L.R.A. 808, 5 So. 190; Goodbar v. Daniel, 88 Ala. 590, 16 Am. St. Rep. 76, 7 So. 254; Bessemer Land & Improv. Co. v. Jenkins, 111 Ala. 135, 149, 56 Am. St. Rep. 26, 18 So. 565; Central of Georgia R. Co. v. Joseph, 125 Ala. 313, 28 So. 35; Pearce v. Smith, 126 Ala. 116, 28 So. 37; Scotch Lumber Co. v. Sage, 132 Ala. 598, 90 Am. St. Rep. 932, 32 So. 607; Patterson v. Irvin, 142 Ala. 401, 38 So. 121; Traders' Ins. Co. v. Letcher, 143 Ala. 410, 39 So. 271. 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 Georgia R. 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 The claimant's affidavit did not state the his knowledge to his principal. We think, nature of his claim, and by the omission however, that the better and more logical he renounced the right to prove any claim explanation is that with respect to the given based upon a mortgage. The plaintiff met transaction the agent is in law identified the omission in the only ways open to him; with his principal; that knowledge that viz., by objection to the introduction of' comes to the agent, while acting in such matter for his principal, would have come, in no other way than by and through its to the principal had he been acting for managing head or officer, it will scarcely be himself; and that, as a rule of policy and doubted that notice to such officer is of justice, he must be equally charged there- necessity notice to it." Herein is found with. Sooy v. State, 41 N. J. L. 395; House- the chief reason for the conclusion of the man v. Girard Mut. Bldg. & L. Asso. 81 Pa. court, in which we fully concur. 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. But the opinion goes further and lays down the rule that the agent's previously acquired knowledge will be constructive notice to the principal, if recently acquired in a connected transaction, or if of such pre be presumed to remain present in his mind and memory during the last transaction. This rule, as there stated, is a quotation from 2 Pom. Eq. Jur. 3d ed. § 672, to which we have already referred. It is sought to be justified as a mere exception to the general rule conceded to exist in Alabama, and is declared to be in harmony therewith; and cases are cited as illustrative of and supporting this exceptional rule; viz., Wiley v. Knight, 27 Ala. 336, 346; City Nat. Bank v. Jeffries, 73 Ala. 183; White v. King, 53 Ala. 162; and Dunklin v. Harvey, 56 Ala. 177. It is sufficient to say of the first two of these cases that they merely lay down the general rule that notice to an agent with respect to a matter as to which he is then serving as agent is notice to the principal; such being unmistakably the fact in each case. It was said, it is true, in Wiley v. Knight, that "the principal knows whatever the agent knows;" but, taken literally and absolutely, this is a patent fallacy, and the court could only have meant to include knowledge acquired while and as agent. The Alabama rule, as above defined, is not in accord with the weight of authority incise and definite character as that it must other jurisdictions, as pointed out by Mr. Freeman in his valuable note to Trentor v. Pothen, 24 Am. St. Rep. 228-233, where the cases on both sides are collected and discussed; and as shown by Mr. Pomeroy in his 3d edition of Equity Jurisprudence (vol. 2, § 672, and notes). It appears from these authorities that the more generally accepted rule is that the agent's knowledge, though acquired previously to his agency, if retained by him and carried with him into the subsequent business which he transacts for his new principal, is notice to the latter whether communicated to him or not. This rule we regard as both illogical and unjust,—a criticism which is fully vindicated by a consideration of the numerous and unpractical qualifications and exceptions which courts expounding the rule have been compelled to adopt. In this connection we note Mr. Pomeroy's observation that "several of the ablest English judges have, in recent cases, expressed a decided opinion against the rule itself, and while considering themselves bound by it, so far as it is settled, have wished that it should be abrogated by the legislature." 2 Pom. Eq. Jur. 3d ed. § 672, note 1. We adhere to the rule as settled by our own cases cited above. 3. There are statements in the opinion in the case of Lea v. Iron Belt Mercantile Co. 147 Ala. 421, 8 L.R.A. (N.S.) 279, 119 Am. St. Rep. 93, 42 So. 415, which we cannot reconcile with our view of the law as settled by our previous cases, and which require qualification. In that case it was held that, where the alleged agent was in fact the sole manager and controller of a corporation at his will, and its sole stock holder but one, the latter being a nonresident, where, in fact, he was not only the alter ego, but in effect the corporation it self, and where he acted in a single transaction for himself and the corporation, his knowledge acquired previous to his agency was notice to the corporation and binding upon it. As was well said per Tyson, J.: "It could be nothing but the sheerest nonsense to say that as agent he should communicate the knowledge to himself as the managing representative of his corporation. Since the corporation could acquire notice In White v. King and Dunklin v. Harvey, though not expressly stated, it is to be inferred from the record that the knowledge of the agent which was held as constructive notice to his principal was acquired by the agent prior to his service as such. Both were chancery cases, and, on the pleadings and proof, the knowledge of the agent was properly, if not necessarily, imputed to his principal by implication, as we shall presently explain. But the theory of constructive notice was applied inadvertently we think, since the distinction as to the time of the agent's acquisition of the knowledge was not mooted, and was evidently not in the mind of the court, and no reference was made in White v. King to the earlier case of Mundine v. Pitts, 14 Ala. 84, 90, where the limitation is plainly declared; while in Harvey v. Dunklin the case of Mundine v. Pitts is actually cited as authority. Moreover, Judge Stone, who wrote the opinion in Harvey v. Dunklin, afterwards declared in McCormick v. Joseph, 83 Ala. 403, 3 So. 797, that "notice or knowledge by an attorney, to carry home constructive notice to the client, must be shown to have been |