Courts v. Jones

• Decision Date: 29 February 1940
• Docket Number: 28000.
• Citation: 8 S.E.2d 178,61 Ga.App. 874
• Parties: COURTS et al. v. JONES.
• Court: Georgia Court of Appeals

8 S.E.2d 178

61 Ga.App. 874

COURTS et al. v. JONES.

No. 28000.

Court of Appeals of Georgia, Division No. 2.

February 29, 1940

Rehearing Denied March 29, 1940.

Second Rehearing Dismissed April 10, 1940.

Syllabus by the Court.

Alston Foster, Moise & Sibley, of Atlanta, for plaintiffs in error.

Carl N. Davie and Alex McLennan, both of Atlanta, for defendant

in error.

STEPHENS Presiding Judge.

Harry S. Jones filed suit against Courts & Company, a partnership, composed of R. W. Courts, R. W. Courts, Jr., M C. Courts and W. F. Broadwell, and against each of said named persons individually. The plaintiff alleged that on December 3, 1937, he and the defendants entered into a contract whereby the defendants became his selling agents, that the subject matter of the agency contract was the sale of seventy-five shares of common stock of the Coca-Cola Company, that the plaintiff was the owner of the stock, that on December 3, 1937, acting under the powers granted them in the agency contract, the defendants sold such seventy-five shares of stock for $8,627.44, and that the defendants as agents of the plaintiff sold this stock to "Dobbs & Company, 50 Broadway, New York," and although the plaintiff is entitled to receive from the defendants $8,727.44 with interest, and although the plaintiff has made demand on the defendants therefor, the defendants have failed and refused to pay such sums or any part thereof to the plaintiff, and the "defendants are improperly withholding from the plaintiff said sums; and it is for this breach of trust that plaintiff brings this suit, having for its purpose the recovery of said sums." Attached to the petition is a photostatic copy of the certificate of stock referred to in the petition, and also attached thereto is a photostatic copy of a power of attorney executed by the plaintiff, dated May 18, 1937, appointing Courts & Company as plaintiff's attorneys, to "sell, assign, transfer and make over all or any part of the said stock, and for that purpose to make and execute all necessary acts of assignment and transfer thereof." This power of attorney recites that the plaintiff has "bargained sold, assigned and transferred and by these presents," does "bargain sell assign and transfer" to --, or to "Dobbs & Co., 59 Broadway, N.Y." From an inspection of the photostatic copy of the power of attorney in the record it does not clearly appear that the stock was assigned to Dobbs & Company. An examination thereof shows some faint smears in this blank which might be Dobbs & Company, etc., but which are very indistinct.

The defendants demurred to the petition on the ground that no cause of action was set forth therein against the defendants or any of them. The trial judge overruled this demurrer, and the defendants excepted.

The theory of the plaintiff's case, as indicated by his petition, was that the defendants were his agents to sell the seventy-five shares of described Coca-Cola stock, and to account to him for the proceeds thereof. In a suit against such agents, where the plaintiff alleges the agreement between them creating the agency, that the property to be sold was delivered to the agent, and that the same has been sold by the agent and the proceeds thereof not paid to the plaintiff upon demand, the petition is good against general demurrer. See Dodge v. Hatchett, 118 Ga. 883, 884 45 S.E. 667. See, also, Merchants' Bank v. Rawls, 7 Ga. 191, 50 Am.Dec. 394. It is the duty of an agent to account to his principal for all property or funds belonging to his principal which come into his hands by virtue of his agency. This duty to account includes all proceeds of sales for his principal. The agent must deliver the funds or the property to his principal upon a proper demand therefor, or at such times as may be fixed by the express or implied terms of the agency, or upon the termination of the agency, or he must satisfactorily explain why he does not do so. Where the agent fails or refuses to account to his principal upon demand, or fails to turn over funds in his hands belonging to his principal upon demand, or when it is his duty to do so, and keeps in his hands funds which he should have paid over to his principal, the principal may collect from him, in addition to such funds, lawful...