106 Ga. 331 | Ga. | 1898
The Aultman & Taylor Company sued Register for $1,529 principal, besides interest, upon eight promissory notes signed by the defendant and by J. S. Graves, and instituted proceedings for the foreclosure of a mortgage given by Register as security for the payment of the notes. The cases were, by consent, consolidated and tried together. The defendant answered, that he was not indebted to the plaintiff; that there was another principal to the notes who was neither sued nor accounted for, and that therefore the suit could not be maintained in its present shape; and that one J. S. Graves, after the making of the notes sued on, became the agent of the plaintiff, and as such agent, by the consent of defendant, took charge of the engine and other property for which the notes sued on were given, and sold the same to other purchasers, and plaintiff accepted the consideration received from such other purchasers, ratified said sale, and thereby released the defendant from any and all liability on account of the same. On the trial of the case the defendant admitted the genuineness of the notes and mortgage, and that the plaintiff was the owner of them. He then proposed to testify that J. S. Graves (who the defendant claimed was agent for the plaintiff in all the transactions involved in these cases up to the time of his (Graves’s) death which occurred just prior to the filing of the suits, and who was a partner of the defendant at the time cf and in the making
It is true that the power in an agent to sell property of his. principal does not carry with it a power to rescind the contract, of sale; and the power to collect a debt does not, of itself, also-include authority to compromise the claim. The theory of the-company in this case on the trial seems to have been that it simply gave Graves permission to sell this machinery, with the understanding that the proceeds of sale when paid to it would be credited on the notes sued. But the jury might have inferred from the facts testified to that the machinery was really delivered by Register, the plaintiff in error, to Graves as agent of the company; that as such agent Graves sold the- property in the name of his principal, and took from the purchaser a mortgage made directly to the company to secure the purchase-money ; and that while this might have exceeded the authority of Graves, yet the company ratified the transaction by an acceptance of the mortgage, and a foreclosure of the same to en force its payment. If such were the case, then this was tanta
There was some testimony in the case relating to payments made by plaintiff in error on this machinery, which were not. admitted as credits by the company’s agent. It appears from the record that the original pleas filed by the defendant were: lost after the trial, and copies established. Certified copies of' these established copies appear in the record, and these contained pleas of payment not admitted as credits by. the plaintiff below. It appears,, however, that since copies of the pleas were established below, the-'original plea was found by the clerk, and he also sent up a certified copy of that original which contains no plea of'credits. We can not say, therefore, under the pleadings as they stood on the trial, that this issue should have been submitted to. the'jury. Considering, however, the defense that seems to have been relied on-in the case, and the testimony bearing thereon, while very meager, as above indicated, yet it did not demand a verdict for the plaintiff for-
Judgment reversed.