Fitzgerald Cotton Oil Co. v. Farmers' Supply Co.
| Decision Date | 09 December 1907 |
| Docket Number | 634. |
| Citation | 59 S.E. 713,3 Ga.App. 212 |
| Parties | FITZGERALD COTTON OIL CO. v. FARMERS' SUPPLY CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
A person who has held out another, throughout a course of dealing, as his agent, and has thus induced third parties to deal with him as his agent, is estopped, as to such third parties, from denying the agency.
[Ed Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 42-44.]
Under a written contract for the sale of cotton seed meal and hulls "to be hauled out as early as convenient," it is a question for the jury, to be decided in the light of all the surrounding circumstances and the exigencies of the contracting parties, as to when delivery was to take place.
(a) It is not error to admit in evidence a letter, from the buyer to the seller, demanding delivery of the remainder of the goods at a time which, under the evidence, the jury were authorized to find was reasonable for such delivery, or even at a later time, when the evidence was such as to indicate that there had been a mutual temporary disregard of the terms prescribing an earlier delivery.
A party cannot complain of a charge which was more favorable to him than it ought to have been.
[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3562, 4052-4062.]
Where a contract is signed by a person individually, parol evidence is admissible for the purpose of showing that he was acting as agent for another.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 1906-1910.]
Where a matter is covered correctly and sufficiently in the general charge, it is not reversible error that the judge refused to charge it in the identical language of a written request.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 651-659.]
The demurrer was properly overruled. No reversible error appears in any of the grounds of certiorari.
Error from Superior Court, Ben Hill County; U. V. Whipple, Judge.
Suit by the Farmers' Supply Company against the Fitzgerald Cotton Oil Company. From a judgment in favor of plaintiff, affirmed on certiorari to the superior court, defendant brings error. Affirmed.
It is not error for the court to refuse requests to charge which were substantially covered by the instructions given.
The Farmers' Supply Company brought suit in the city court of Fitzgerald against the Fitzgerald Cotton Oil Company for a breach of the following contract, which they alleged they made through their agent Harris:
The breach alleged was the failure to deliver on demand 831 sacks of meal. There was no dispute about the making of the contract in the terms set out above. During the month of December, the defendant delivered some meal and hulls as called for by the plaintiff. On the 30th of the month, the defendant wrote the following letter to the plaintiff: The plaintiff received this letter late in the afternoon on the day it was written, which was Saturday. On the following Monday morning, the 1st of January, the plaintiff's manager went to the office of the defendant with a blank check in his hand to pay for the rest of the meal and hulls and to haul the same out. One Huggins was in charge of the office. Plaintiff's manager told Huggins that he had come for the balance of the meal and hulls and asked him for 500 sacks. Huggins refused to let him have this amount, and finally sent him away with 10 sacks, or 1,000 pounds. When Huggins refused to let him have more than 10 sacks, plaintiff's manager did not offer to pay for the remainder of the meal and hulls. During the months of January and February, hulls were delivered by defendant and paid for by plaintiff at the contract price, although plaintiff could have purchased the hulls in the open market at a slightly lower figure.
The defendant also delivered and accepted payment for meal during these months at the contract price of $22, although the market price had advanced from $24 to $28 per ton. On March 10, 1906, the plaintiff wrote to the defendant as follows: "We now make final demand on you for the balance of the cotton seed meal due us on this contract to be delivered at once, not later than the 15th inst." It also appears from the evidence in the record that plaintiff had made several previous demands for meal which had been refused by the defendant. Upon the failure and refusal of the defendant to comply with the demand contained in the letter of March 10th, the plaintiff went into the open market and bought the meal for $28 per ton, and then brought suit for the difference between the market price of $28 per ton at that time and the contract price of $22 per ton. At the trial in the city court, the jury returned a verdict for the plaintiff, and the defendant sued out certiorari to the superior court. The error assigned in this court is the order of the judge of the superior court overruling the certiorari.
Haygood & Cutts, for plaintiff in error.
E. W. Ryman and E. Wall, for defendant in error.
1. The first assignment of error is that the manager of the plaintiff company was allowed to testify that Huggins, on January 1, 1906, "refused to let me have more than a thousand pounds of meal." The objection which the defendant urges to this testimony is that it does not appear that Huggins was an agent of the company who was authorized to act, and therefore any refusal on his part would not be binding on the defendant. From the evidence in the record it appears that Huggins was referred to by the manager of the defendant company as his bookkeeper; that, when plaintiff's manager called at the office on January 1st Huggins was in charge of the business; that he had authority to sign orders for the delivery of meal; that he was authorized to collect all money unless directed not to do so; that, both before and after the day named, the plaintiff's drayman called at the office of the defendant company, and Huggins ordered meal and hulls delivered to him; that, when the manager Meakin was absent, Huggins was in charge of the office, because Meakin himself testified: In determining the extent of an agent's authority, it is more important to look to the nature of the duties he is accustomed to perform than to the name by which he is called. If his duties are those of a manager or an assistant manager, it is immaterial that he is referred to by his principal as a bookkeeper. By a course of dealing Huggins had been held out as having authority to deliver and to refuse to deliver meal and to receive payment therefor. He was thereby clothed with apparent authority to that extent. In Huffcut on Agency (2d Ed.) 129, it is said: As was said by the Supreme Court of New Jersey, speaking through Depue, J.: ...
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