144 Ga. 598 | Ga. | 1916
A number of persons brought an equitable action for an accounting and to recover judgments against a warehouse company. They alleged, among other things, that the defendant was bound by contract, and by a local custom of the trade, to fully insure cotton stored with it, and that through its agents and officers it represented that it had done so; that in fact it took out a general policy for much less than the value of the cotton stored; that a loss by fire occurred, and a fund was realized by it from salvage and the insurance which it had, but -the cotton saved was in such condition that it could not be identified. Other persons, claiming to have stored cotton with the warehouse company, were made parties. The case came to this court from a ruling on a demurrer; and the petition generally was upheld. Farmers Ginnery &c. Co. v. Thrasher, 140 Ga. 669 (79 S. E. 474). The case was then referred to an auditor, who made a report favorable to the plaintiffs. Exceptions to his report were filed. They were submitted to the judge of the superior court, without a jury. He rendered judgment against the exceptions, and the defendants brought the case to this court by writ of error. Pending the litigation a payment was made to each of the plaintiffs from the fund arising from the insurance which the warehouse company carried, and from the salvage. The amounts so realized, it was conceded by the plaintiffs, should be allowed as credits, and they claimed the value of the cotton lost, less such credits and certain charges.
The notices were not mere announcements of a business policy, or offers to secure bids, or even similar to merchants’ advertisements in newspapers of goods which they desire to sell. According to evidence for the plaintiffs, and the finding of the auditor, they amounted to offers to receive cotton on the terms stated; and when such an offer was seen and accepted and cotton was delivered to the defendant on such terms, there was a binding contract.
The mere fact that the notices had remained posted for several' years before the fire made no difference. The offer had not been withdrawn, but was still held out, and there was no change in the charges.
The statements of one Jenkins that the cotton was insured were admitted. The only ground for the admission of his statements as admissions or agreements was that he was a director, and one witness referred to him also as secretary of the defendant. A director may by express agreement or by usage become the agent of the company, and his acts may become binding on it. But the mere fact that he is a director gives him no right to bind the company by his acts or sayings. Directors act as a body, not by the statements of an individual director, unless he has received authority to speak for the company. Garmany v. Lawton, 124 Ga. 876 (53 S. E. 669, 110 Am. St. R. 207). The admission of the statements of Jenkins that the cotton was insured was error; but, in view of the other evidence, it was not such error as ought to require a reversal.
Marks No. Weight P. Marks Be-Wt. Bemarks
Beceived from B. H. Adkins
Ginning ......$1.58 Bales of Cotton, Marks, Nos. etc., as
Storage .......$ per margin, deliverable to this receipt,
Weighing......$ or its duplicate, by paying customary
Insurance .....$ charges and all advances and indebted-
Beweighing ... .$ ' ness.
Drayage.......$ (Acts of Providence and fire ex-
Bags & ties... .$1.00 cepted.)
“H. A. Bailey, Weigher.”
It was contended that the words, “Acts of Providence and fire excepted,” constituted a limitation upon the liability of the warehouse company, and that a custom could not be shown to the contrary. The point is substantially ruled in Hamilton v. Moore, 94 Ga. 707 (19 S. E. 993), where the form of receipt used was somewhat similar to that here involved; and the same principle is recognized in Zorn v. Hannah, 106 Ga. 61 (31 S. E. 797). See also Atwater v. Hannah, 116 Ga. 745 (42 S. E. 1007); Rochelle Gin &c. Co. v. Fisher, 13 Ga. App. 621 (79 S. E. 584). We were asked to review and overrule the decision in the case first cited. It was a unanimous decision of this court when composed of three members, and it would require the concurrence of five members of the court as at present constituted to overrule it, even if there were any disposition to do so. Civil Code (1910), § 6207. The requisite number of Justices do not concur in so doing.
Judgment affirmed.