43 Ga. App. 361 | Ga. Ct. App. | 1931
1. “Declarations of an alleged agent are not by themselves admissible to prove agency, but it may be established by proving circumstances, apparent relations, and the conduct of the parties; and where the extraneous circumstances, independently of and without regard to the declarations of the agent himself, clearly tend to establish the fact of his agency, his declarations, though inadmissible if standing alone, may, as a part of the res gestae of the transaction, be considered.” Collier v. Schoenberg, 26 Ga. App. 496 (106 S. E. 581); Render v. Hill, 30 Ga. App. 239 (117 S. E. 258).
2. While ordinarily it is better practice in all cases to require proof of the agency before admitting the declarations of the alleged agent under the rule stated above (Abel v. Jarratt, 100 Ga. 732, 28 S. E. 453), yet where, after the premature and improper admission of such declarations, there is further evidence amply authorizing a finding that the agency in fact existed, the error .in admitting the declarations will not ordinarily require a new trial. Alexander v. Richardson, 37 Ga. App. 407 (2) (140 S. E. 638), and cit.
3. It is the general rule that a plaintiff must recover upon the cause of action laid in the petition, and that a verdict in his favor is illegal when the evidence fails to support the cause of action declared on, even though a different cause of action may appear from testimony admitted without objection. Napier v. Strong, 19 Ga. App. 401 (2) (91 S. E. 579). It is further true, however, that while allegations of fact are generally to be construed most strongly against the pleader, yet, in the absence of special demurrer, where
4. The evidence authorized the verdict in favor of the plaintiff, and it can not be here set aside for any reason assigned.
Judgment affirmed.