3 Ga. App. 287 | Ga. Ct. App. | 1907
1. The soundness of the proposition that notice do Mathews would be notice to the 'bank depends upon whethef Mathews represented the bank in making the particular transaction. Primarily it will be presumed that although he had general authority to make loans and to discount commercial paper in behalf of the bank, he did not so act in making a loan to or discounting a note for a partnership in which he was interested; for however great an agent’s authority to make such negotiations with other persons may., be, it is prima facie a violation of duty that he should serve his master and himself at the same time. Capital City Brick Co. v. Jackson, 2 Ga. App. 771 (59 S. E. 92); Todd v. German American Ins. Co., 2 Ga. App. 789 (59 S. E. 94). Since to have dealt with himself (no permission for such a dealing being ■shown) would have been unlawful, the court will presume, until the contrary appears, that he dealt with some other agent of the corporation, or with its board of directors. The burden of proving that Mathews dealt with himself in the transaction at bar was upon the defendant, who asserted notice to the corporation of the secret stipulation contained in the contract of partnership. If partner Mathews dealt in the transaction with cashier Mathews, the bank would be imputable with such knowledge as the common agent possessed; but if partner Mathews, though also agent of the bank, did not in this transaction deal with himself, but with some other officer of the bank, he is to be treated as if he were an adverse party and no agent of the bank at all. Such is the rule in this State. Fouché v. Merchants National Bank, 110 Ga. 827 (3), 845 (36 S. E. 256); Morris v. Banking Co., 109 Ga. 12 (34 S. E. 378, 46 L. R. A. 506); Brobston v. Penniman, 97 Ga. 527 (25 S. E. 350); Savannah Bank & Trust Co. v. Hartridge, 73 Ga. 233; Peoples Bank v. Exchange Bank, 116 Ga. 820 (3), (43 S. E. 269, 94 Am. St. R. 144); English-American Co. v. Hiers, 112 Ga. 823 (38 S. E. 103); National Bank v. Demere, 92 Ga. 735 (19 S. E. 38).
2. There was' strong, if not absolute proof that Felder used, as collateral security for an indebtedness, the stock, for the purchase-price of which the note in question was given. Even if Mathews’ overstepping of his authority under the articles of partnership was unauthorized-originally, such a ratification would have estopped Felder from denying liability on the note. Sibley v.
3. It was undisputed that Mathews had authority to bind the partnership to a liability not-exceeding $1,000. The law governing the power of a partner to contract in behalf of the firm is very cognate to the law governing the authority of a general agent. “Where a man doeth that which he is authorized to do and more, there it is good for that which is warranted and void for the rest.” Co. Litt. 258 a. Unless the contract be entire and indivisible, it will be upheld so far as the authority extended, and is subject to repudiation only so far as the authority was exceeded. Nothing is more divisible than a contract for the payment of money. It is divisible with absolute mathematical precision. Eor example, a partner has no implied authority to bind his associates to the payment of usury, and if he does so the usurious part of the contract is not only prima facie a violation of the partnership agreement, but is absolutely unlawful; however, neither the partnership nor the individual partners can escape the whole contract because it is so illegal in part, but will be held liable to the extent of principal and lawful interest. Dillon v. McRae, 40 Ga. 107 (2), 114. So also a partner can not waive homestead for his partners; but if he gives a note for money in which he attempts to make such waiver, the contract will be upheld as a promise to pay, but the waivers will be ineffectual. Giles v. Vandiver, 91 Ga. 192 (17 S. E. 115); Drumright v. Philpot, 16 Ga. 431 (60 Am. Dec. 738), and cit; Williams v. Seale, 103 Ga. 801 (30 S. E. 644). It should be observed that in the case at bar the contract whereby the banking company sold Mathews & Co. the stock and took the note in pajunent was fully executed on both sides, and the stock had passed orrt of the hands of the partnership. The-contract of. sale, which was an entire contract, is therefore no longer to be considered in determining the divisibility of the note as a promise to- pay.
4. The plaintiff offered to waive any right to recovery beyond the $1,000 and interest, and moved the court to direct a verdict in Ms favor for that sum. It has been 'held repeatedly that the refusal of a trial judge to direct a verdict will not be reversed.
Judgment reversed.