Bryant v. Booze
55 Ga. 438
Ga.
1875
Check Treatment
Bleckley, Judge.

Booze filed a bill against Bryant and Briscoe to compel them to convey to him a certain tract of land. He based his right on a contract made by letter, which he alleged he had *445concluded for the purchase of the land, and of which, he alleged, they had notice when they purchased and took a conveyance from the same party. Notice was denied, and, more, over his contract was assailed as invalid because made on Sunday. The jury found for him, and the court decreed the conveyance prayed for, on condition of his paying into the clerk’s office the amount fixed by his contract as purchase money. The record shows that this payment was made within the time prescribed by the decree.

1. Upon the charges in the bill, there can be no doubt that the complainant was within a well known principle of equity jurisprudence when he invoked the interposition of that court to prevent his adversaries from holding on to a title which they acquired with notice of his prior purchase. They, on such a state of facts, would occupy the place of their vendor, and would have to respond to a demand for specific performance, for him or with him. For this position early and late authorities are both abundant: Fry on Sp. Per., 57, 58; 1 Story’s Eq., section 396.

2. And the notice, to charge them, need not be actual nor amount to full knowledge. Information, from whatever source derived, which would excite apprehension in an ordinary mind and prompt a person of average prudence to make inquiry, would be sufficient. Nor need the notice be proved by direct and positive evidence; it may be shown by facts and circumstances. And the jury are at liberty to believe the notice existed, notwithstanding it may be positively denied by the testimony of the interested parties. In this case they do deny it; but their denial does not negative the facts that environed them; and from these facts the jury could have formed a very rational opinion that they either did know, or ought to have known, that Booze had outstripped them in making a contract of purchase. There was enough in sight to put them on inquiry. If they failed to inquire, they are in the same situation as they had received the notice, which they doubtless would have received if they had ventured to ask a question.. The means of information were *446at hand. The law would hold them only to resort to such sources of information as were reasonably accessible; it would not impose on them extreme diligence, but ordinary diligence; and not even that, until they had first seen or heard something to awaken apprehension. Perhaps rumor, apparently well founded, might be enough for that, under some peculiar circumstances, though it is not, of itself, notice or a badge of fraud: 8 Georgia, 258. In this case, however, the jury might well have found there was more than rumor to prompt inquiry. There was a very suspicious activity immediately after Bobo communicated to Bryant’s brother the fact of Booze’s purchase: 1 Story’s Eq., sections 399, 400a.

3. Notice to an agent is notice to the principal: Code, sec. 2200. The court’s charge on this subject was sufficiently accurate for the purposes of the present case. The evidence does not point to any notice that reached the alleged agent before his agency was created or after it ceased. If he was agent at all, he was most probably such when he received the information which is relied upon as notice to him. There is nothing to show the discontinuance of his agency, if indeed he was agent, except that one of the principals, at last, after the agent became aware of Booze’s contract, stepped in and made the purchase in person. It is contended that, on account of this last mentioned fact, the doctrine of notice to agents does not apply to the case at all. But it will be remembered that this alleged agent, either for himself as principal, or for some one else, had, for some time, been opening the way for a purchase of the land. If Bryant and Briscoe were his principals, (and that was a question for the jury,) they only followed up the opening winch he had made or formed. The evidence shows that he was in conference with them shortly before the purchase was effected, and there is nothing to indicate that they had ever, up to that last interview, taken any part, in person, in the efforts at negotiation. He was the brother of one of them, and the circumstances make it altogether probable, to say nothing of the express admission of the fact by the latter, that he represented them.

*4474. In regard to this admission, we think it clear that being made as it was, after their purchase and after their title vested, it proves no agency as against Briscoe. It is evidence only as against Bryant, the party who made it. But the evidence of ageney which the facts and circumstances themselves afford, affect both alike, and they are pretty strong. It would not do any violence to probability to consider ageney established independently of the admission. Besides, the exigencies of the ease do not absolutely require that there should have been an ageney. Only for the purpose of charging the principals with notice through the agent, is the ageney at all material, and there is enough evidence of notice otherwise to uphold the verdict.

5. The owners of the land had an attorney in fact residing in Hart county, one Roberts. Booze resided in Floyd, the county in which the land lies. In the latter county resided also a mutual friend of the parties by the name of Bobo. Roberts had been corresponding with Bobo, and by that- means knew that Booze wanted to purchase. He finally wrote to Bobo requesting him to say to Booze that he could have the land for $550 00 and taxes of the current year. This letter was received and handed to Booze on Saturday. That night Booze wrote an answer addressed to Roberts, accepting the proposition. On the next day, being Sunday, he carried this letter to the house of Bobo, told him of his acceptance, and requested him to read the letter. Bobo read it. It is contended that at this point the contract was closed, and consequently, that it was a Sunday contract. Several answers may be made to this suggestion. Roberts was, himself, only an attorney in fact, and his power, as copied in the record, did -not confer express authority to constitute sub-attorneys or agents under him. His letter to Bobo did not instruct him to sell the land to Booze, but only to communicate a proposition. Booze did not, if he could have done so, elect to deal with Bobo alone, but addressed his written acceptance to Roberts, and adopted the mail, the medium by which the letter of Roberts to Bobo had been received, as the means of final transmission; he re*448quested Bobo to carry the letter on the next day to Rome, (whither Bobo was going on his own business) and put it in the post-office. This Bobo promised to do, and he did so accordingly. There was no arrangement that Bobo should write informing Roberts of Booze’s acceptance, or that Bobo was to take any further part in the transaction, except to convey Booze’s letter to the post-office, and this he undertook to do at Booze’s request, and not under any instructions from Roberts. It is plain that both of the actors in the Sunday interview treated the letter as the sole medium of acceptance, and as an acceptance designed to be direct, as between Booze and Roberts. "We think it unquestionable that no contract cam© into existence until this letter was delivered into the post-office on Monday, and that then the contract became complete s Code, section 2728; 4 Georgia Reports, 1; 5 Ibid., 167. For an interesting article on contracts by letter, see 7 American Law Review, 433.

6. At first view there may seem to- be a taint of illegality upon the contract, because of the request to post the letter having been made on Sunday, and of the subsequent posting of it in pursuance of that request. There is certainly here some resemblance to an agency created on Sunday and executed on Monday. But the act requested was simply a mechanical one, and nothing was to be done towards its performance till the Sabbath had ended. To treat such a request as the delegation of a power or the creation of an authority, and to set aside an act done during the week, as mere matter o-f favor, because the request to do it was made on Sunday, would be over strict. So nice an application of law to Sunday transactions would scarcely leave a man free to direct his son or his servant on Sunday night where to commence ploughing next morning. But if the posting of the letter was strictly the execution of an agency created on Sunday, the aet of posting was, in itself, lawful, and if not lawfully authorized, was susceptible of being lawfully ratified and adopted: Code, section 2192; 9 N. H., 500. And see 24 Vt., 187, 317; 18 Ibid., 379; 35 Me., 143; 49 Ibid., 432; 27 Vt., 272; 9 *449Allen, 452; 3 Foster, 229; 44 Georgia Reports, 541. We think, however, it is not a breach of law to hand even a business letter, on Sunday, to another, and request a conveyance of it to the post-office, to take place on the ensuing day; and that a letter thus dealt with may be the medium of closing a lawful contract.

7. One of the grounds in the motion for new trial involves the failure of complainant’s counsel to erase from one of the letters which went out with the jury, a memorandum, made by himself, of dates as to the time of its reception, and of the writing and mailing of the reply. On objection to the memorandum as evidence, made by the opposite party, the counsel promised in court to erase it. Doubtless it was forgotten. But it did no harm. The evidence was substantially in conformity to the memorandum, and the jury were well warranted in finding as they did. The real pressure of the case was upon notice. The jury thought there was sufficient notice, actual or constructive, and the judge below was satisfied with their finding. Such a question is peculiarly one for the jury, and we think they did not draw their conclusion without premises to warrant it.

We affirm the judgment.