108 Ga. 640 | Ga. | 1899
On the 15th of January, 1896, Mrs. Mc-Croskey made a lease to J. S. and K. S. Hamilton of certain realty. It, among other things, stipulated that the tenants were to pay each month a specified sum as rent, and that “should any payment fail to be made at or within thirty days after its maturity, the lease may be terminated at the option of the party of the first part.” TheHamiltons made a default in paying the stipulated rent fora particular month, and as to it were in default for more than thirty days. Thereupon an affidavit
At the conclusion of the evidence the defendants moved for a nonsuit. In support of their motion it was insisted, (1) that as the first ground for removing the tenants set forth in the plaintiff’s affidavit had not been met or denied by the counter-affidavit, the sole issue for trial in the superior court- was whether or not the plaintiff was entitled to dispossess the defendants under the second ground contained in her affidavit, viz., that the tenants were holding over and beyond their term; and (2) that the plaintiff had failed to establish the truth of '
We agree with counsel for the defendants in error, that Rustin was not acting in the capacity of agent for Mrs. McCroskey, and consequently we do not think that the doctrine of ratification is applicable. As to this branch of the case, our views are as follows: Girardeau was unquestionably Mrs. Mc-Croskey’s agent, and as such was not only authorized but expressly directed to declare the lease forfeited upon non-compliance with its terms. He certainly could, in his own proper person, have exercised the authority conferred upon him by his principal. We are quite clear he could also do so by using his servant, and that as to this matter Rustin was nothing more. He was not, in any proper sense, a subagent of Girardeau, but a mere instrument. On this occasion he simply acted as the messenger of his employer. The relation between Girardeau and Rustin was plainly that of master and servant. Girardeau, as agent for Mrs. McCroskey and in attending to her business, surely had the right to avail himself of the services of his own servant as a means for accomplishing the end in view. “ It is a general principle that an agent’s authority is construed to embrace all the means usual and necessary for its proper execution.” 1 Am. & Eng. Enc. L. (2d ed.) 979-980. “A deputy possessing general powers may, in many cases, constitute another person his servant or bailiff, for the purpose of doing some particular act; provided, of course, that such act be within the scope of his own legitimate agency.” Broom’s Legal Maxims (7th ed.), 841. And see the instances, pertinent
The next question is: Did Girardeau direct Rustin, in case the demand for the rent was not complied with, to declare-a forfeiture of the lease? It does not appear that Girardeau, did this in so many words, but we think there was enough proof on this subject to warrant a jury in finding that this was; what Girardeau told Rustin to do, and that the latter so understood his mission to the Hamiltons. The evidence shows that Girardeau, in pursuance of his instructions from Mrs. Mc-Croskey, sent Rustin to make a demand for the rent. Those-instructions were to immediately terminate the lease and take-possession of the premises if rent which had been due for moro than thirty days was not paid. Rustin seemed to understand thoroughly the business on which he was sent, for he demanded payment of the rent, and payment having been refused he then demanded possession of the rented, property. Putting these things all together, there is not much room for doubting that Rustin did exactly what he was sent to do.
There is yet another question to be dealt with. It is : Were-the demands made by Rustin the equivalent of a notice to the Hamiltons that Mrs. McCroskey was exercising her option to terminate the lease and bring the tenancy thereunder to an end? In an opinion filed by his honor of the trial bench, after
Judgment reversed.