Sherrod v. Springfield Baptist Church, 8503

8503 | Ga. Ct. App. | Nov 2, 1917

Jenkins, J.

(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" court="Ga." date_filed="1900-01-29" href="https://app.midpage.ai/document/harris-loan-co-v-elliott--hatch-book-typewriter-co-5569823?utm_source=webapp" opinion_id="5569823">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" court="Ga." date_filed="1900-06-07" href="https://app.midpage.ai/document/walton-guano-co-v-mccall-5570031?utm_source=webapp" opinion_id="5570031">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" court="Ga." date_filed="1906-12-12" href="https://app.midpage.ai/document/cable-co-v-walker-5575456?utm_source=webapp" opinion_id="5575456">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" court="S.C." date_filed="1901-04-01" href="https://app.midpage.ai/document/white-v-commercial--farmers-bank-3875413?utm_source=webapp" opinion_id="3875413">38 S. E. 453); Ham v. Brown, 2 Ga. App. 71 (58 S.E. 316" court="Ga. Ct. App." date_filed="1907-05-24" href="https://app.midpage.ai/document/morris-v-duncan-5602422?utm_source=webapp" opinion_id="5602422">58 S. E. 316). In the case of Bank of the University v. Tuck, 96 Ga. 456 (23 S.E. 467" court="Ga." date_filed="1895-07-29" href="https://app.midpage.ai/document/bank-of-the-university-v-tuck-5566292?utm_source=webapp" opinion_id="5566292">23 S. E. 467), it was said: “It being, under the evidence disclosed by the record, a question for determination by the jury, whether or not the alleged course of dealing between the plaintiff and the original payee of the note established, an implied agency upon the part of the latter to collect the same, it was proper for the court in its charge to deal with, and instruct the jury as to the law of implied agency.” The charge of the trial court referred to in that case, and which was approved as substantially correct, was as follows: “If the agent holds himself out and acts for the principal, whether a particular, general or universal agent in his business, and this is done from time to time until third parties dealing with the agent are led to believe by the acts of the agent and of the principal, in using and receiving the benefits, or are led to deal with them by the acts of the principal toward his agent, he could hold the principal bound for the acts of the agent, without any express authority.?

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" court="SCOTUS" date_filed="1871-11-27" href="https://app.midpage.ai/document/bronsons-v-chappell-88420?utm_source=webapp" opinion_id="88420">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.’’ Another case in point is that of Wilcox v. Carr, 37 F. 130" court="None" date_filed="1888-12-31" href="https://app.midpage.ai/document/wilcox-v-carr-9305251?utm_source=webapp" opinion_id="9305251">37 Fed. 130, wherein the payment to a sub-agent in Iowa (without possession of the written evidence of debt) was held good, notwithstanding the paper itself called for payment at the agent’s office in Connecticut, and the money never reached that State, but was embezzled by the sub-agent in Iowa. The court lays stress on the payment of the money due on the coupons or interest notes to the same agent and the subsequent delivery of the coupons or notes themselves, thus ratifying the payment of the money without producing the written evidence of debt. Thus, while the evidence in this case could not as a matter of law be taken as being conclusive upon this question, still, in our opinion, it was a question for the jury to determine whether the course of dealings between the defendant and the plaintiff, through the agent, established such implied agency, where it was shown that the note was negotiated by the alleged agent and made payable at the 'chartered bank of which he was cashier, and where in the course of previous dealings with the defendant' the alleged agent received payment of various interest notes without having possession of them, and that these payments were subsequently ratified by the principal and the interest notes thereafter delivered.

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.

Wade, G. J., and Luke, J., concur.