Fitzgerald Cotton Oil Co. v. Farmers Supply Co.

59 S.E. 713, 3 Ga. App. 212, 1907 Ga. App. LEXIS 598

• Court: Court of Appeals of Georgia
• Decided: December 9, 1907
• Docket: 634
• Status: Published

Opinion

Powell, J.

(After stating the foregoing facts).

1. The first assignment of error is that the manager of the-plaintiff company was allowed to testify that Huggins on January 1, 1906; “refused to let m’e have more than a thousand pounds-of meal.” The objection which the defendant urges to this testimony is that it does not appear that Huggins was an agent of the company who was authorized to act; and therefore any refusal on his part would not be binding on the defendant. From the-evidence in the record it appears, that Huggins was referred to. by the manager of the defendant company as his bookkeeper; that when plaintiff’s manager called at the office on January 1, Huggins was in charge of the business; also that he had authority to sign orders for the delivery of meal; that he was authorized to-collect all money unless directed not to do so; that both before and after the day named, the plaintiff’s drayman called at the office of the defendant company, and Huggins ordered meal and hulls delivered to him; that when the manager Meakin was absent, Huggins was in charge of the office, because Meakin himself testified. “When I was away from there, I left Mr. Huggins there; his instructions and duties were to issue tickets from the-office, make all charges, and keep a correct record of everything-that transpired in and out of the office in the way of business.” In determining the extent of an agent’s authority, it is more important to look to the nature of the duties he is accustomed to perform than to the name by which he is called. If his duties are those of a manager or an assistant manager, it is immaterial that he is referred to by his principal as a bookkeeper. By a course of dealing Huggins had been held out as having authority1 to deliver and to refuse to deliver meal and to receive payment therefor; he was thereby clothed with apparent authority, to that extent. In Huffcut on Agency (2d ed.) 129, it is said: “The-sole inquiry in such a ease is -whether there has been a holding out of the agent as one having authority and whether the third person, acting with average prudence and good faith, was justified in believing that the agent possessed the necessary authority. If so, the principal roust bear the risk, because he has held out the agent as possessing the authority which he seems to possess, and is not in a position to maintain that third parties should know that what appears to be true is not true.” As was said by the Supreme Court of New Jersey, speaking through Depue, J., “A principal is bound by the acts of his agent, within the authority he has actually given him, which includes not only the precise act expressly authorized to be done, but also whatever usually belongs to the doing of' it, or is necessary to its performance. Beyond that he is liable for the acts of the agent, within the appearance of the authority he knowingly permits the agent to assume, or holds the agent out to the public as having.” Law v. Stokes, 32 N. J. L. (3 Vroom) 249 (2), (90 Am. D. 655). The defendant had held out Huggins in such a manner as to lead the plaintiff who had been dealing with him to believe that he had authority to deliver and to receive payment for the goods which it sold, and therefore the defendant can not now assert his lack of actual authority; because “the authority of an agent need not necessarily be proved by an express contract, but may be proved by the habit and course of business of the principal. If a man holds out another as his agent, and thus induces persons to deal with him as agent, the principal is estopped, as to such third parties, from denying the agency.” Brooks v. Jameson, 55 Mo. 505. See also Story on Agency (8th ed.), §§87, 95; Mechem on. Agency, §84; Johnson v. Waxelbaum Co., 1 Ga. App. 51 (3), (58 S. E. 56); Luckie v. Johnson, 89 Ga. 321 (15 S. E. 459).

2. The defendant contends, that the court erred in admitting in evidence the letter dated March 10, 1906, from the plaintiff to the defendant, on the ground that under the evidence of both parties, the contract was broken, if at all, on January 1, 1906, and the rights of the parties became fixed as of that date; that if Huggins was authorized to act, his refusal to deliver the meal demanded was a breach by the defendant, and that if Huggins Avas not authorized to act, the plaintiff was guilty of a breach in not making a legal demand and tender within the time prescribed by the contract. This contention is not sound, for the following reasons. In the first place, there was no specific date mentioned in the contract for delivery and payment; the only thing appearing on this point was that the goods were “to be hauled out as ■ early as convenient.” We can not say as a matter of law that the expression used meant not later than January 1, 1906. What the parties meant by this expression was a question of fact, to be determined by the jury in the light of all the surrounding circumstances. Under the evidence the jury were authorized to find that the parties meant a later date than January 1, 1906; and under such a finding the letter referred to was relevant and important for the purpose of showing that the plaintiff had demanded performance and that the defendant had refused such demand. Furthermore, the evidence showed that during both January and February, hulls were delivered by the defendant and paid for by the plaintiff at the contract price, though the plaintiff could have purchased the hulls cheaper in the open market; also that the defendant delivered meal and accepted payment therefor at the contract price of $22 per ton, whereas the market price at the time was from $24 to $28 per ton. The witnesses of the plaintiff testified that these deliveries and payments were made in pursuance of the terms of the contract; and while the witness of the defendant denied this, the jury were authorized to find in accordance with the evidence on the part of the plaintiff. Therefore, even if the defendant was right in its contention that the date prescribed by the contract for delivery and payment was not later than January 1, the subsequent conduct of the parties tended to show a mutual temporary disregard of strict compliance with this term of the contract; and the letter objected to was admissible under section 3642 of the Civil Code of 1895, which is as follows: “Where parties, in the course of the execution of a contract, depart from its terms and pay and receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given the •other of intention to rely on the exact terms of the agreement. Until such notice, the departure is a quasi new agreement.”

3, 4. The defendant sets forth several excerpts from the charge •of the court and complains that they embody expressions of opinion on the facts. When these excerpts are read in connection with the context and with the charge as a whole, they are not open to objection on the ground stated. Indiana Fruit Company v. Sandlin, 125 Ga. 223 (6), (54 S. E. 65). The defendant does, however, assign error on one portion of the charge which seems to contain an intimation by the judge that the evidence tends to ■establish a certain fact. This fragment of the charge is contained in the 37th paragraph of the petition for certiorari, and is as follows : “Now I charge you, gentlemen of the jury, that a contract in -writing, such as this one, with the name of an individual signed thereto, can be shown to be the contract of his principal, whether that principal be another individual or a corporation. In other words, it is possible to show that that contract was in fact the contract of the Farmers Supply Company. Now evidence has been put before you tending to show and for the purpose of showing that was really the case.” At the trial the defendant introduced only one witness. As to the fact on which the opinion ■of the court was intimated, he testified as follows: “Mr. Harris came down to my office and told me he wanted to buy some meal and hulls, and as I understood it he wanted to buy them for the. Farmers Supply Company. . . When I made this contract I was dealing with J. H. Harris and the goods were supposed to be for Farmers Supply Company. I knew that at the time. . . I know that he bought these goods from me with the understanding that Farmers Supply Company were to receive the goods.” Harris was introduced as a witness by. the plaintiff, and he testified that in making the contract he was acting as agent for the Farmers Supply Company. Since, therefore, there was no dispute in the evidence as to this matter, the judge could have properly ■charged the jury that although the contract was signed by Harris, yet the evidence showed that he was acting as agent for the Farmers Supply Company, and that the contract was really one between the plaintiff and the defendant: In other words, instead of merely intimating that the fact had been proved, he could have charged them positively and unequivocally that it had been proved. Shields v. Ga. Ry. & Elec. Co., 1 Ga. App. 172 (57 S. E. 980). This being so, the defendant can not complain that the judge ■only intimated an opinion adverse to its contention, when he could have charged that there was no evidence in support of such contention; for the defendant can not complain of a charge which is more favorable to it than the evidence justifies. Moss Mfg. Co. v. Carolina Portland Cement Co., 1 Ga. App. 232 (57 S. E. 914). It was competent to show by parol evidence that the contract nominally that of the agent was in fact that of the principal. Civil Code, §§3022, 3039; Watertown Engine Co. v. Palmer, 84 Ga. 368, and cit. (10 S. E. 969, 20 Am. St. R. 368); Tiffany on Agency, 233.

5. Several assignments of error go to the refusal of the judge to charge in accordance with certain requests submitted in writing by the defendant’s counsel. One of these requests was as follows: “Under the law, persons dealing with one who purports to act in behalf of a corporation do so at their own risk as to whether such person is in fact the agent of the corporation and authorized to act for it, or not.” The court gave this charge but qualified it as follows: “with this proviso, that they are protected if the agent is held out by the company, or other person, as being the agent empowered to transact such business.” It is insisted that the qualification added by the judge was error. Instead of this qualification being error, it kept the charge from being error, because, under the evidence, Huggins had the apparent authority which he assumed - to have; and one of the very acts which clothed him with this apparent authority was the holding of him out by the defendant in such a manner as to lead the plaintiff to believe that he had such authority. The request embodied a correct statement, in the abstract, of a general principle of law, but it would have been error to give in charge this-abstract principle without the. qualification added by the judge. The proviso qualified the abstract principle so as to make it applicable to the evidence in the case.

The defendant further complains of the refusal of the judge to* charge in accordance with a written request, as to certain admissions which had been made in the original answer, but which were subsequently withdrawn by an amendment. The request was substantially a correct statement of the law,- but the language used would probably have misled the jury. The judge refused to-make the charge requested, but in his general charge he covered the law relating to the matter referred to as follows: “Now,, with reference to admissions, I charge you this: If a party make an admission against his own interest, .then, if it is made in the-form and manner prescribed by law, it is allowed in evidence. If the party make an admission in a plea, either by himself or his1 attorney, and subsequently amend that pleading and strike it, it can be introduced in evidence as an admission on his part, made either by himself or his attorney. In case it is stricken, and then introduced in evidence, it has the same effect as an admission made-in a statement, — that is to say, it goes before the jury, and they can give it such weight and credit in determining the facts and circumstances as they deem it wise to attach to it. Now, under the law, a man has the right, at different stages of the procedure of a suit, to amend his petition by striking out certain things which he has before put in his petition, if the court allows it. If' it is stricken out, and the court allows it to be stricken out, he is not then bound by it, but it can be introduced as an admission to-go before the jury to be given such weight and credit as a fact and circumstance as they deem wise.5’ This charge correctly states the law as to admissions made by pleadings. Alabama Midland Ry. Co. v. Guilford, 114 Ga. 627 (40 S. E. 794); 2 Wigmore, Ev. 1250. Where a matter is covered substantially and sufficiently by the general charge, a refusal to charge in the exact language of a written request is not error. Hawkins v. Kermode, 85 Ga. 116 (2), (11 S. E. 560).’

6. The demurrer to the petition was properly overruled. No-reversible error appears in any of the grounds of' certiorari.

Judgment affirmed.