Martin v. McLain

180 S.E. 510, 51 Ga. App. 336, 1935 Ga. App. LEXIS 688
CourtCourt of Appeals of Georgia
DecidedApril 8, 1935
Docket24550
StatusPublished
Cited by17 cases

This text of 180 S.E. 510 (Martin v. McLain) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Martin v. McLain, 180 S.E. 510, 51 Ga. App. 336, 1935 Ga. App. LEXIS 688 (Ga. Ct. App. 1935).

Opinion

Guerry, J.

E. B. Martin sued certain named defendants, trading as the “McLain Estate,” for the purchase-price of a certain peanut-threshing machine. He attached to his petition the order for this machine, signed “McLain Estate” by “G. K. McLain.” He also attached to his petition an instrument which is materially as follows: “Know all men by these presents that we, Mrs. Ruby McLain Duggan and Miss Alma McLain, . . and J. P. McLain, . . and Mrs. G. D. Brim . . have constituted, made, and appointed, and by these presents do make, constitute, and appoint G. K. McLain our true and lawful attorney in fact, for us and in our name, place and stead, to do everything in connection [337]*337with the management and operation of the estate of J. J. McLain and Mrs. J. J. McLain, both deceased. . . We . . give the said G. K. McLain full power and authority . . to make all contracts in connection with the operation of said farm, sign any and all papers, notes, contracts, etc., touching the maintenance and operation of said estate, it being the purpose of this instrument to give to said G. K. McLain full authority to do any and all things in connection with said estates for us in as full and ample a manner as if the same was done by us, giving and granting unto G. K. McLain, attorney, full and whole power and authority in and about the premises; and generally to do and perform all and every act and acts, thing and things, device and devices, in law whatsoever, needful and necessary to be done in and about the premises, and for us in our name to do, execute, and perform as largely and employ, to all intents and purposes, as we might or could do if we were personally present, and an attorney or attorneys under us for the purpose aforesaid to make and substitute; hereby ratifying and confirming all that G. K. McLain, said attorney or substitute, shall lawfully do by virtue.” This instrument was properly executed by the parties named therein and recorded. The demurrer to the petition, which was sustained by the trial judge, contends that the above power of attorney did not give to G. K. McLain power to purchase a threshing machine.

The petition further alleges: “That the defendants owned at the time of the purchase of said threshing machine described in Exhibit A, and also at the time of the execution of the power of attorney described in Exhibit B, a twelve-horse farm located in Terrell County, Georgia, and the defendants who executed said Exhibit B were the sisters and brother of the defendant, G. IC McLain, at the time of the purchase of said threshing machine was operating the said farm for himself and the other defendants, and had planted a large acreage, of approximately one hundred acres in peanuts, to be harvested during the fall of 1933, and it was necessary to the management and operation of said farm for the defendants to purchase a threshing machine to thresh said peanuts, not only for said year but for succeeding years thereafter. And not only is the defendant G. K. McLain liable for the purchase-price of said threshing machine, but, under the said power of attorney, the other defendants gave him such authority as contained therein, [338]*338so that they thereby also became liable for the purchase-price of said threshing machine.”

The cardinal rule of construction of all contracts is to ascertain the intention of the parties thereto. Civil Code (1910), § 4266; Mandeville Mills v. Milam, 39 Ga. App. 768 (148 S. E. 418); Ætna Life Insurance Co. v. Padgelt, 49 Ga. App. 666 (176 S. E. 702). If the intention is clear, contravenes no rule of law, and sufficient words are used to arrive at that intention, it should prevail, “irrespective of all technical or arbitrary rules of construction.” Civil Code (1910), § 42C6. In arriving at the intention of the parties to an authorization, as in the present case, the instrument is subject to a strict construction. “A formal power of attorney, executed with deliberation, is subject to a strict construction. General terms in it are restricted to consistency with the controlling purpose [italics ours], and will not extend the authority so as to add new and distinct powers different from the special powers expressly delegated.” White v. Young, 122 Ga. 830 (51 S. E. 28).

The power of attorney already quoted, besides giving G. K. McLain, in general terms, management and control of the estate, gives “the said G. K. McLain full power and authority . . to malee all contracts in connection with the operation of said farm, sign any and all papers, notes, contracts, etc., touching the maintenance and operation of said estate.” When this language is taken in connection with the allegations of the petition, which on demurrer are to be accepted as true, that at the time of the execution of the above authorization and at the time of the execution of the order for the threshing machine, the defendants owned and operated a farm of 12 plows, which was a part of the McLain estate, and had planted thereon approximately 100 acres of peanuts, and that in order to thresh them it was necessary to buy the machine, we can hardly see how better they could have conferred on G. K. McLain authority to buy the same, unless they had specifically stated in the authorization his authority to do this particular act. To give 'him such authority it was not necessary to do this. See, in this connection, Lanier v. Hebard, 123 Ga. 626 (51 S. E. 632); 2 C. J. 454.

While an authorization to a person to manage a business, such as a farm, would not generally include authority to make unusual [339]*339or extraordinary contracts with reference thereto, or to discontinue the operation of the farm, or to sell, pledge, or otherwise dispose of the farm, or radically change the nature of its operation, it would empower him to make such contracts as are incidental to such operation, which are usually made in it, or are reasonably necessary in conducting it; and to procure equipment and supplies reasonably necessary for the proper conduct of the business. See Restatement of the Law of Agency, Am. L. Inst. § 73. For “if a person imposes upon another the duties and responsibilities involving the management and control of a business, such person will be presumed to have authority to represent his employer in any matter within the scope of the business.” Pickens Co. v. Thomas, 152 Ga. 648 (111 S. E. 27, 21 A. L. R. 1438). The general words of the power, when construed in connection with its controlling purpose—that of management' and control of the .estate, which included the operation of the farm, and also the special authorization in the power to make “all contracts in connection with the operation of the farm,” gave to G. K. McLain ample power, under the allegations of the petition, to purchase the machinery, the purchase-price of which is here sought to be recovered. Nothing said herein conflicts with the rulings made in White v. Young, supra, or Born v. Simmons, 111 Ga. 869 (36 S. E. 956), or other cases cited by defendant in error.

The petition alleges a delivery of the property purchased. A right of action for the purchase-price of personal property will lie against the buyer when he accepts delivery of the property. IJpon delivery of the property to defendants and their acceptance, the contract became executed, and an obligation on the part of the defendants arose to pay the purchase-price of the machine as provided in the contract. See Dilman v.

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Bluebook (online)
180 S.E. 510, 51 Ga. App. 336, 1935 Ga. App. LEXIS 688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-mclain-gactapp-1935.