28 Ga. App. 78 | Ga. Ct. App. | 1922
Lead Opinion
This case was tried by the judge of the superior court,' upon an agreed statement of facts, without the intervention of a jury. The agreed facts are substantially as follows. In January,
Under the terms of the contract, because of a failure to honestly account for the trust funds collected by Aldrich & Marshall, the contract entered into in 1918 was cancelled and all rights thereunder terminated, and the commissions earned forfeited. Guinn also notified Aldrich & Marshall that the Stuart contract and all rights and interests thereunder were also cancelled, and that the renewal commissions accumulated thereunder would stand as forfeited. Suit was brought by Aldrich & Marshall upon the Stuart contract for money had and received. Issue was joined by the plea of Guinn, and it was contended by him that both contracts were subject to cancellation and that all accrued rights thereunder were forfeited. The plaintiffs admitted Guinn’s right to cancel the contract entered into with them, but denied his right to cancel the Stuart contract, which for a valuable consideration they had purchased, with the right to the accrued and accumulating renewals to which Stuart had become entitled up to the time of the sale of the contract and his severance of his connection with Guinn as district manager. Upon this agreed statement of facts the judge of the superior court deter
Upon the agreed statement of facts it was error to hold that Gwinn had the right to cancel or terminate the accrued and accumulating interests under the Stuart contract. A consideration of the agreed statement of facts is conclusive that Aldrich & Marshall were entitled to the accrued and accumulating renewal commissions, notwithstanding their other contract with Guinn. The rights under the Stuart contract and the interests therein were neither lessened nor increased by the new contract of agency with them. It was not necessary for Aldrich & Marshall to contract further with Guinn in order to be entitled to the benefits arising under the Stuart contract. The right to all benefits under the Stuart contract ripened when it was, with the assent of Guinn, transferred and assigned unto them. Aldrich & Marshall had no right, by reason of the Stuart contract, to represent Guinn in any capacity. Aldrich & Marshall did not act as district managers or represent Guinn in any capacity by reason of the Stuart contract. The contract with Aldrich & Marshall was a new contract of agency, upon different terms. Under our view of this statement of facts, Aldrich & Marshall are entitled to the renewal premiums, upon the terms of the Stuart contract. Guinn as agent is liable under the Stuart contract for all of such renewal commissions as may have accumulated according to its terms, subject, of course, to Guinn’s right, upon appropriate pleadings, to recover such amounts as he may show that Aldrich & Marshall are indebted to him by reason of money had and received, to which he is by law entitled.
Judgment reversed.
Rehearing
ON MOTION FOR REHEARING.
One of the contentions of the defendant in his motion for a rehearing is that the court overlooked the fact, as shown by the record, that the premiums collected by Aldrich & Marshall, and in which they defaulted, were not premiums on business written by them but were premiums on business written by Stuart.
The real question in this case is, by what authority did Aldrich & Marshall collect renewal premiums for the insurance company? The record shows that authority to collect renewal premiums was first given to Aldrich & Marshall at a time approximately two
The other ground of the motion for a rehearing is without merit and requires no elaboration.
Motion for rehearing denied.