21 Ga. App. 200 | Ga. Ct. App. | 1917
(After stating .the foregoing facts.)
1, 3. The fact that a' person assuming to be the agent of another receives payment from the debtor on a written evidence of debt does not raise an implication of his agency, where he does not produce the written evidence of debt itself (Civil Code of 1910, § 3578); nor is such agency established by the declaration of the alleged agent (Harris Loan Co. v. Elliott & Hatch Co., 110 Ga. 302 (34 S. E. 1003); Americus Oil Co. v. Gurr, 114 Ga. 634 (40 S. E. 780); neither does such implication arise when it is shown that the alleged agent was the medium through whom the money was originally passed to the debtor, and that the instrument was taken by such person. Howard v. Rice, 54 Ga. 53. Such agency does not follow from the fact that partial payments have hitherto been made by the debtor to the person assuming to act as such agent, where on each former occasion the agent produced the evidence of indebtedness (Walton Guano Co. v. McCall, 111 Ga. 114, 36 S. E. 469); nor from its being shown that the evidence of indebtedness provides that payment shall be made at the particular bank of which the alleged agent is cashier. 7 C. J. 587, § 343. The fact, however, that from none of these things does agency follow does not prevent one who has made payment to a party assuming to be the agent of the creditor from establishing such relationship by proof, of circumstances, apparent relations, and the conduct of the parties. Cable Co. v. Walker, 137 Ga. 65 (56 S. E. 108). And thus, where the independent and extraneous fact is made to appear, that in the course of previous dealings with the debtor the alleged agent received payment of various interest notes without having possession of them, and that the payments were subsequently ratified by the creditor and the interest notes thereafter delivered, all of the facts and circumstances above enumerated can then be properly considered by the jury as- throwing some light upon the question of agency involved. Abel v. Jarratt, 100 Ga. 733 (38 S. E. 453); Ham v. Brown, 2 Ga. App. 71 (58 S. E. 316). In the case of Bank of the Univer
The principle here applicable has been stated by the Supreme Court of the United States in Bronson’s exr. v. Chappell, 79 U. S. 681, 683 (20 L. ed. 436), as follows: “Where one without objection suffers another to do acts which proceed upon the ground of authority from him, or by his conduct adopts and sanctions such acts after they are done, he will be bound, although no previous authority exist, in all respects as if the requisite power had been given in the most formal manner. If he has justified the belief of a third party that the person assuming to 'be his agent was authorized to do what was done, it is no answer for him to say that no authority had been given, or that it did not reach so far, and that the third party had acted upon a mistaken conclusion. He is estopped to take refuge in such a defense. If a loss is to be borne, the author of the error must bear it. If business has been transacted in certain eases, it. is implied that the like business may be transacted in others. The inference to be drawn is, that everything fairly within the scope of the powers exercised in'the past may be done in the future, until notice of revocation or disclaimer is brought home to those whose interests are concerned. Under such circumstances, the presence or absence of authority in point of fact is immaterial to the rights of third persons whose interests are involved. The seeming and reality are followed by the same consequences. In either case the legal result is the same.’’
3. While the evidence was conflicting, we think that the jury were authorized to find that the payment in dispute actually reached the hands of Salsbury, who had the undoubted right to receive it. If this be true, then, irrespective of the question as to Armstrong’s right to collect it, this would conclude the rights of plaintiff. As was said in Bank of University v. Tuck, supra: “If the holder actually received the money collected by the payee on the note, this should be an end of the matter.”
Judgment affw-med.