32 Ga. App. 665 | Ga. Ct. App. | 1924
Lead Opinion
E. R. Barmore, a contractor and builder, brought suit in the city court of Atlanta against E. C. Callaway for the breach of an alleged contract whereby, it is averred, he was employed by the defendant, “acting through one H. K. Chapman, architect, to do certain construction work; namely, to underpin and support the east wall of what is knoAvn as the Clark property, situated at 23 E. Alabama street, Atlanta, Ga., for the purpose of safely holding said wall until the defective stone Avail should be removed and replaced. The portion of the said wall to be underpinned and supported was a section of tAventy-five feet, or such amount as to safely guard the division Avail during said removals ■ and replacements at this point. The price agreed upon for said work was $500.” The petition alleges that soon after the plaintiff entered upon the work the defendant stopped him and prevented his performance of the alleged contract, causing him the damage sued for. A verdict was found for the plaintiff, the defendant made a motion for a new trial, which the court refused, and he excepted.
It is vigorously maintained by the plaintiff in error that the verdict is without evidence to support it, because of the absence of any proof of authority in the architect Chapman to make the contract. The owners of the property in question were a Miss Clark and her sister, who lived in California. They were aunts of the defendant’s wife. He resided in Atlanta and, as a relative of the owners, was concerned in the protection of their interests, and while he would advise them, he Avas in no sense their agent. These facts are undisputed.
Chapman, the architect, sworn as a witness for the plaintiff, testified with reference to three separate conferences which he had with the defendant, Callaway, preceding his action in employing the plaintiff in the defendant’s name to do the work upon the wall. He said that at the first conference Callaway called his attention to the defective wall and asked him to go down and look at it, declaring to him at the time, however, that, while he, Calla-
Other evidence of this witness was as follows: “He stated that his wife was a niece of Miss Clark, and he was interested in Miss Clark, but that Watkins Company were her agents here, to collect rents and look after the building, and for me to go and look at it and make an estimate, but Watkins would have to make the contract with me; but he told me not to see the Watkins people until I saw him and let him know what it was going to be.” “After I had reported to him exactly the condition of it he said, ‘Have it jacked up and made safe, held in place, and then we will see what can be done with it.’” Q. “He didn’t tell you to go out and make a contract with anybody else did he?” A. “Well, no contract had been made at that time.” “No, sir, he didn’t tell me, ‘Mr. Chapman, you get a contractor, go there and fix that wall, and make a contract with him.’” Q. “He never did authorize you to make that?” A. “He never authorized me to have that wall jacked up.” “He told me to have that-wall jacked up and made safe. He didn’t tell me to make a contract, or have a contract for it, because he left that in my hands. No, sir, he didn’t authorize me to make a contract with any contractor to jack up that wall.” The jury might have concluded from this testimony
The defendant testified that he never instructed Mr. Chapman to make any contract about having the work done, and denied most positively that he directed him to have the wall jacked up and made safe. He claimed that Chapman solicited work and told him about the defective wall, and that he replied: “Mr. Chapman, I haven’t any authority to make any contract for the work. The agents are Watkins & Company, who have entire charge of Miss Clark’s' property, and they have asked me to look at the wall, and to advise with Miss Clark, so that I could advise Watkins & Company.” He testified that he promised merely to recommend Chapman for the job, and that he said to him: “You will have to make your ultimate contract with them [Watkins & Company], as I have no right or title in it, and have no right to make the contract;” that he tried “to make it plain,” and further said to Chapman: “If you will go down and look at the wall, you might see what you think it would cost, so that we can tell Miss Clark;” that thereupon Chapman went to examine the wall and reported its condition; that Chapman then asked if he should now go down and see Watkins & Company, to which the defendant replied: “No, you will lose time now, and might lose the job. I will tell you in ample time when to get in touch with them;” and that the most he ever said to Chapman was: “I am going to advise that that wall be jacked up if I never go any further with it. It is time for you to get busy.”
The defendant claims not to have had any further conversation with Chapman until the next day, when he found that Chapman had undertaken to contract with Barmore on his behalf. It appears that the contract was instantly repudiated, and that Barmore was required by the defendant to desist from its further execution.
The action is not founded upon the theory that the defendant undertook without authority to contract on behalf of the owners of the property. But the plaintiff is seeking to hold him to a contract which he is alleged to have made upon his own credit through his alleged agent Chapman. We think the evidence for the plaintiff was sufficient to authorize the inference that while Callaway at first did not intend to enter into any contractual rela
The conflict in the testimony as to whether he gave Chapman such directions was one of fact which, of course, has been settled in favor of the plaintiff by the jury, and by their solution of it, whatever may have been the actual truth, this court under the law is absolutely bound. The evidence was sufficient to authorize a finding that Chapman was empowered as the defendant’s agent to make the contract.
In one of the special grounds of the amended motion error is assigned upon the following charge of the court: “The plaintiff contends that the defendant gave directions to Mr. Chapman to have this wall referred to jacked up and made safe. If you believe that contention to be true, that would constitute Mr. Chapman the agent of Mr. Callaway, in so far as the subject-matter referred to was concerned.” It is insisted that even though the jury should have believed that the defendant directed Chapman to have the wall jacked up and made safe, it was still for them to determine whether under all the facts and circumstances such direction would
We have seen that under the evidence given by the architect for the plaintiff the jury were authorized to find that the defendant told the architect to “have the wall jacked up and made safe.” But the question for our decision on the exception to the above-quoted excerpt from the charge of the court is not whether such statement was actually made, but, assuming, as we must,, that it was made, the inquiry is whether or not, under all the facts and circumstances of the case, the defendant must necessarily be taken to have been then and there acting for himself, or whether he may have been continuing to assume to act for his absent relatives while disclaiming any legal and binding authority so to do: The jury has never passed upon this phase of the case. The court decided this question in plaintiff’s favor as a matter of law. In other words, the effect of the instruction to the jury was that, no matter how plainly it might appear that the defendant had been assuming to act for his relatives and not for himself, while candidly stating that he was without legal authority to bind them, the mere giving of the direction'indicated authorized the architect to conclusively assume or presume as a matter of law that he thereby intended to impliedly revoke and withdraw all of his previous plain and positive inhibitions upon his personal liability; and that he must thereby have necessarily intended to impliedly assume to bind his own individual credit. In view of the fact that in all the previous conversations the defendant had made it unmistakably clear that he was assuming to act, though without legal authority, for the owners and not for himself, it is our opinion that the jury should, have been allowed to say whether the direction quoted should have impliedly authorized the architect to assume a “right about face” in all that the defendant had so plainly and so repeatedly emphasized relative to his own status and personal
The case of Raoul v. Newman, 59 Ga. 408, cited for the plaintiff in error, seems to be directly in point. In that case, as here, there could never have been any sort of possible question as to the defendant’s lack of authority (unless by an implied agency to procure necessaries for the injured child in the absence of the father) to bind any person for the services except himself, but in that case it was held that “the jury ought to consider all the circumstances, and determine whether the plaintiff believed, aird had a right to believe, that the defendant was offering his own credit,” when he, as the plaintiff did in this case, directed that the work be done. The instant case seems stronger for the defendant, for while here just as in that case no express pledge of the defendant’s credit is claimed, but only an implied. assumption of personal responsibility is contended for, yet in this case it indisputably appears that the defendant, though without personal interest or legal authority in the matter, had throughout the transaction made it known that he was assuming to act for and was advising with the owners. • It might possibly seem to the jury that, after having repeatedly made his status as a mere interested relative of the owners and friend of the architect absolutely clear, the architect should have received from the defendant something more definite than the one alleged implied, but vague and indefinite, assumption of personal liability. Of course, the defendant might have pledged his own credit for the benefit of his relatives and of his friend, but, in view of all the facts and surrounding circumstances, such an intention need not be necessarily assumed, even had the jury been permitted to pass upon that issue. Section 3613 of the Civil Code (1910) provides, that “all agents, by an express undertaking to that effect, may render themselves individually liable, and every agent exceeding the scope of his authority is individually liable to the person with whom he deals.” Here it is not sought to hold the defendant liable on account of any express personal undertaking, nor on account of having ex
Mr. Mechem, in his valuable text-book on Agency, has this to say (§ 1370) : “Where agent disclaims present authority. If the doctrine of the previous section be sound, as it unquestionably is, then a fortiori will the agent not be liable where he expressly disclaims any present authority, and leaves the other party to take the chances. He may, of course, expressly undertake to procure authority or ratification, but such an undertaking would not be lightly inferred.” It might be contended that the authority just cited begs the question, for it purports to deal with a case where the agent disclaims authority. In reply, it might be asked, when is an agent not an agent ? When he disclaims any power as such. The above-quoted authority recognizes that despite such disclaimer he may nevertheless assume to act as agent, and that one dealing with such a person must depend at his peril upon the ratification of his conduct. Such might have been the opinion of the jury as to what the situation was in the instant case. An architect soliciting business for his own personal benefit and profit is told about a certain building belonging to absent relatives of the defendant, which might need attention. The defendant expresses his interest in the welfare of the architect and in the owners as
We are the more convinced of the correctness of this position for another reason. The architect, according to his own and the plaintiff’s theory of the case, was but a special agent authorized to do a particular thing on the implied responsibility of the defendant. “In special agencies for a particular purpose, persons dealing with the agent should examine his authority.” Civil Code (1910), § 3595. “Persons dealing with an agent for a particular purpose are bound to inquire as to the extent of his authority.” Harris Loan Co. v. Elliott &c. Co., 110 Ga. 302 (2) (34 S. E. 1003). Bearing in mind this elementary principle of law, we find that the architect testified as follows: “Acting under those instructions, if I can put it” that way, I received from Mr. Barmore an estimate in this shape, $500 minimum, that is all we could see at that time would have to be done there at least, of $500, and in case the entire wall would have to be removed, the maximum price would be $3,000. This was a little higher, more expensive than I thought it would be, and I knew Mr. Callaway didn’t think that the cost would be that high (italics ours), so that I would not close with
It thus appears that, not only was the plaintiff chargeable with the duty of seeing that the architect, as the alleged agent of Calla-way, did not exceed his authority, but it appears that he was actually put on express notice that the architect agent was assuming to enter upon a contract which he himself thought was “a little higher and more expensive” than it should have been, and was certainly higher and more expensive than his alleged principal contemplated. In other words, the plaintiff is not only seeking to hold the defendant personally liable on an implied assumption of personal liability, despite all the surrounding facts and circumstances looking to the contrary, but would hold him on a contract the cost of which the architect himself thinks was to some extent excessive. The evidence authorized the inference that both
We do not go so far as to hold that the evidence demanded a finding either that Chapman exceeded his authority in regard to the price, if given the direction claimed, or that the plaintiff knew he was exceeding his authority if he did so. We have considered the evidence upon these questions merely as shedding light upon the question of whether the court erred in charging the jury that if Callaway told Chapman to have the wall jacked up and made safe, such direction, as a matter of law, would necessarily authorize Chapman to proceed as Callaway’s agent. We think the charge was error.
In ground 6 of the amended motion for a new trial error is assigned upon the following charge of the court: “But, if Mr. Barmore knew that there was a limitation upon the authority of Chapman as to fixing the price, he would be bound by such knowledge; and if he knew that there was a limitation upon the authority of Chapman in relation to fixing the price, if he knew before Chapman could fix the price that he must refer the question back to Mr. Callaway, then he would not have had the right to assume that Chapman had a right to fix the price, and Callaway would not be bound by any contract made by Chapman in excess of his actual authority, if Barmore knew what the actual authority was. To restate that again: if Callaway in fact gave Chapman authority to have the wall jacked up and made safe,
The evidence did not establish that Chapman was more than a special agent (see First National Bank v. Nelson, 38 Ga. 391 (1), 401 (95 Am. D. 400); Foster v. Jones, 78 Ga. 150, 1 S. E. 275); and while it is provided in the Civil Code, § 3595, that “in special agencies for a particular purpose,, persons dealing with the agent should examine his authority” (see also Baldwin Fertilizer Co. v. Thompson, 106 Ga. 480, 32 S. E. 591; Harris Loan Co. v. Elliott &c. Co., supra; Thomas v. Bagley, 119 Ga. 778, 47 S. E. 177), it is also declared in the same code section that “the agency will be construed to include all necessary and usual means for effectually executing it,” and this latter provision is applicable as well to special agents as to general agents. See Bass Dry Goods Co. v. Granite City Mfg. Co., 119 Ga. 124 (45 S. E. 980). And so long as a special agent does not go beyond the necessary and usual means for executing his agency, his powers with reference to the particular undertalcing are in the nature of those of a general agent to the extent that private instructions or limitations not known to thé person dealing with him cannot affect them. “A principal is bound to the extent of the apparent authority he has
. While we have already stated our conclusions with reference to certain phases of the evidence, we will repeat, in this connection, that we do not think the evidence demanded a finding, although authorizing it, that Chapman exceeded his authority as to the amount he might agree to pay for the work, if he had the instructions claimed, although it is shown in his testimony that he thought that Barmore’s price was higher than Mr. Callaway would like. He hesitated to agree to Barmore’s figures, and, after receiving them, tried to get in touch again with Callaway before closing the contract, but, on failing promptly to do so, directed Barmore to go ahead. This evidence, while showing a preference on the part of Chapman.to obtain Callaway’s final approval, did not, as. a matter of law, demand the conclusion that he was bound to do so.
But even if it were otherwise, the verdict found for the plaintiff would not be illegal upon that ground, unless the evidence also showed conclusively (as it did not) that Barmore was put upon notice as to the special limitation upon Chapman’s authority having sole reference to the price.
Error is assigned upon the following charge of the court: “Under the law, then, you would have the right, if you think it is right to do so, to add a sum equivalent to interest at the rate of seven per cent, per annum from the date of the breach of the contract until this date. Under the law you would not be required
The evidence authorized the verdict. The judgment of the trial court, overruling the motion for a new trial, is reversed solely for the error pointed out in headnote % and the corresponding division of the opinion.
Judgment reversed.
Dissenting Opinion
dissenting. I cannot agree to the ruling of the majority as contained in the 2d headnote and the corresponding division of the opinion, nor, therefore, to the judgment of reversal. The question is, if Callaway in fact directed Chapman to have the wall “jacked up and made safe,” did such direction, as a matter of law, establish the relation of principal and agent between them, when the latter proceeded thereunder, as the court in effect instructed the jury? In support of the negative of this question,
In commenting upon this case in Green v. Coast Line R. Co., 97 Ga. 15, 36 (24 S. E. 814, 33 L. R. A. 806, 54 Am. St. R. 379), the Supreme Court said: “This court held that if there was a great and overwhelming’calamity to the child, rendering medical aid instantly necessary, the parent would be responsible as for necessaries, and Raoul would be treated as his agent to call the physician.” If the injured party had been an adult, and Raoul had called the physician just as he did, it would seem that in no view could he have been held liable for the physician’s services. See Norton v. Rourke, 130 Ga. 600 (61 S. E. 478, 18 L. R. A. (N. S.) 173, 124 Am. St. R. 187). In such a case, in the absence of an express contract, the physician should infer only that the call was one of humanity and not of a party offering to contract. As to who would be liable under such circumstances, see Cotman v.
In the case at bar, if Callaway said to Chapman, “Have that wall jacked rip and made safe,” his statement could not have been taken as a call of humanity, as in the Norton case; nor were there circumstances from which the law could imply an agency to act for another, as was true in the Raoul case; and yet Callaway was at all times stating that he had no authority as agent to bind the owners. In each of the cases just referred to there was some one else besides the speaker who could be held liable, — in the Raoul case the boy’s father, in the Norton case the injured party himself, he being an adult. Cotman v. Wisdom, supra.
If the evidence in the case now under consideration had authorized the inference that Callaway was the agent of Miss Clark and her sister, then the language ascribed to him could not have been held, as a matter of law (whether as a matter of fact), to have evidenced an intention to contract on behalf of himself rather than as the agent of the owners. But since every one concerned agrees that he was not the owners’ agent and did not presume to act as such, no other reasonable inference is possible to be drawn from such declaration by him, under the circumstances, if he made it, than that he intended to bind himself, and that for such purpose he nominated Chapman as his agent. Any other interpretation of the direction by Callaway to Chapman, if given as claimed, would, rinder the undisputed circumstances, have placed Callaway in the anomalous attitude of one who, though, declining to pledge his own credit in behalf of relatives of whose interests he was solicitous but for whom he was expressedly not authorized to make contracts, would yet call upon another, apparently a stranger to them, to assume responsibility for the expense of the urgently needed work upon their property, without any assurance that anybody would ever pay for it. Was the interested relative and adviser requesting that the stranger take the risk? There is nothing to indicate that Mr. Callaway would have taken a position so unreasonable and abnormal; and unnatural characteristics should not be attributed to him without evidence. While it is true that “where reasonable men might differ as to the inferences to be drawn from certain evidence, the matter should be left to the jury” (Dixon v. Bristol Savings Bank, 102 Ga. 461 (2), 468
When a given state of facts will bear several different interpretations it is the function of the jury to say which one of them should be adopted, but where only one reasonable inference can be drawn therefrom, the question resolves itself into one of law, and may be determined by the court. Civil Code (1910), §§ 5735, .5936, 5943; Toole v. Edmondson, supra.
Again, Chapman was an architect. Callaway knew it. The language ascribed to the latter, if uttered, did not, under the circumstances, reasonably import that Callaway intended that he should be responsible only in the event that Chapman should do the work himself, but implied nothing less than that he should have it done by others. If this testimony is true, he was told to have the work done. “The relation of principal and agent arises wherever one person expressly or by implication authorizes another to act for him.” Civil Code (1910), § 3569. Even if Chapman should have undertaken the work himself, necessarily he would have had to employ help. The details of accomplishing the desired end were not given. The execution would have involved a discretion. “Agency may also be defined as the relation created by express or implied contract or by law, whereby one party delegates the transaction of some lawful business with more or less discretionary. powers to another, who undertakes to manage the affair and render to him an account thereof. 1 Am. & Eng. Enc. Law .937.” Burkhalter v. Ford Motor Co., 29 Ga. App. 592 (116 S. E. 332). “The agent’s authority will be construed to include all necessary and usual means for effectually executing it.” Civil Code (1910), § 3595.
The excerpt from the charge left it to the jury to solve the conflict between the testimony of Chapman and that of Callaway as to whether the latter directed the former to have the wall jacked up and made safe. In my opinion, the trial judge was right when he then told the jury that if they found that issue in favor of the plaintiff, “that would constitute Mr. Chapman the agent of Mr. Callaway, in so far as the subject-matter referred to was
I think that the trial was free from error, and that the motion for a new trial was properly overruled.