123 Ga. 5 | Ga. | 1905
It is an ancient and well-established rule of law, that the declarations of an agent are not admissible against his principal, unless they were made at a time when the agent was engaged in some transaction within the scope of his agency and was acting in behalf of his principal. To state it otherwise, the declaration must be one accompanying an act within the scope of the agency and so nearly connected therewith as to become a part of the res gestse. Story on Ag. (9th ed.), § 134 et seq.; 1 Gr. Ev. (16th ed.) § 184 c; 2 Evans’ Pothier on Obligations (3d Am. ed.), 245; Chamberlayne’s Best on Ev. (Int. ed.) 487; 1 Ene. Ev. 538 et seq. Such was the recognized rule in this State at the time the Code of 1863 was adopted. Griffin v. Railroad Co., 26 Ga. 111; Sweetwater Mfg. Co. v. Glover, 29 Ga. 399; Atlanta Railroad Co. v. Hodnett, Id. 461. There is also an equally well-, established rule, that entries made by one whose duty it is to make them, in the regular course of business, are admissible after his death ; and this rule applies in the case of an agent who makes such entries in the course of the business of his principal. 1 Gr. Ev. (16th ed.) §120 a; Starkie on Ev. (10th Am. ed.) 492 et seq.; 4 Enc. Ev. 103-104. Such entries may in many cases be a part of the res geste; but there are also instances where such would not be the case, but after the death of the agent who made such entries they are nevertheless admissible. There is still another ancient and well-established rule, that declarations against interest by one since deceased are admissible in evidence in a con
6. W. J. Neel, Esq., was called as a witness for the plaintiff and was permitted to testify to a conversation between J. Dallas Turner and his wife in reference to the payment of the claim of the plaintiff out of money the proceeds of a loan which the witness had negotiated for Mrs. Turner. He was also permitted to testify to other matters in connection with the negotiation of this loan.- This evidence was objected to on the ground that the relation of attorney and client existed between the witness and the defendant, and that therefore the witness was not competent to testify in reference to any matter knowledge of which he derived on account of the professional relation claimed to exist between the parties. It appeared that Mr. Neel carried on, in connection witjh the practice of his profession as an attorney, the business of a negotiator of loans ; that he was authorized by the company which he represented to receive applications for loans; that these applications were transmitted to the company, and if the security offered was satisfactory the loan would be accepted, and the money would be sent to Mr. Neel, who, after deducting such sums 'as had been agreed upon between him and the- applicant for expenses and commissions, would pay over the net proceeds to the applicant. It is clear from the testimony- that Mr. Neel bore that relation to the applicant and the loan company which has become so familiar to every one in this State. He was the agent of the applicant, and not the agent of the lender. But he was expected by the lender, on the acceptance of the application, to see that the applicant had an unincumbered title to the property, and if there were incumbrances it was his duty to see that these incumbrances were removed before any portion of the money was paid over to the applicant. He owed a duty to the applicant, as agent, to do every act that was legitimate and proper to secure the acceptance of the loan. In the performance of these duties it would become necessary for him to exercise his knowledge and information as an attorney at law, but he was really not employed as an attorney, but simply as an agent who, on -account of the fact that he was also an attorney, might discharge the duty
7. The charge of the judge contained the rules as to a principal being bound by the ratification of unauthorized acts of his agent, and as to the liability of an undisclosed principal. Error was assigned upon these portions of the charge, upon the ground that
8. The foregoing discussion embraces such of the assignments of error as require any elaborate notice. The plaintiff’s case was predicated upon the theory that J. D. Turner was the agent of Susie B. Turner. While there was an allegation that J. D. Turner was insolvent, this was an unnecessary and immaterial allegation, and the failure to sustain it hy proof would not cause the plaintiff’s case to fail, if the other averments which were material were established to the satisfaction of the jury. The charge, when construed as a whole, fairly submitted to the jury the controlling issues in the case, and those portions which were excepted to were not erroneous for any of the reasons assigned. The requests to charge, so far as legal and pertinent, were covered by the general charge. If there was any error at all in the charge, or in the rulings on evidence, such error was not of sufficient importance to require the granting of a new trial. There was evidence upon which a finding that J. D. Turner was the agent of Susie B. Turner in the transaction involved could properly be based; and this appearing to have been the second verdict in the case, and one which seems to us to be so consistent with the real' truth and justice of the case, we do not think there was any sufficient reason, either for the trial judge to grant a new trial, or for us to control whatever discretion he may have had at this stage of the case in overruling the motion for a new trial.
Judgment affirmed.