Hutchens v. State, 70102

• Decision Date: 08 April 1985
• Docket Number: No. 70102,70102
• Citation: 330 S.E.2d 436,174 Ga.App. 507
• Parties: , 41 UCC Rep.Serv. 1747 HUTCHENS v. The STATE.
• Court: Georgia Court of Appeals

Page 436

330 S.E.2d 436

174 Ga.App. 507, 41 UCC Rep.Serv. 1747

HUTCHENS v. The STATE.

No. 70102.

Court of Appeals of Georgia.

April 8, 1985.

William H. Lumpkin, Augusta, for appellant.

Kenneth E. Goolsby, Dist. Atty., Harold W. Wallace III, Dennis C. Sanders, Asst. Dist. Attys., for appellee.

DEEN, Presiding Judge.

Appellant Hutchens ordered certain items printed, and on two separate occasions one week apart sent an employee to pick up the orders. In each instance he gave the employee a signed and dated check made payable to the publisher, but with the amount payable left blank. Apparently following his employer's orders, the employee on both occasions inquired of the printer as to the amount of the bill, whereupon the printer who had known appellant Hutchens for some time, telephoned Hutchens in the employee's presence and informed him of the amount, and then in response to Hutchens' oral assent and authorization, filled in the appropriate amounts on the checks and gave the employee the materials ordered, after which the checks were deposited. The bank dishonored both checks for insufficient funds, and subsequently the publisher made the statutory formal demand for payment. OCGA § 16-9-20(a)(2)(B). When none was forthcoming, appellant was charged with violation of OCGA § 16-9-20, criminal issuance of a bad check. In a bench trial the court found appellant guilty. On appeal Hutchens enumerates as error the trial court's failure to direct a verdict of acquittal, on the ground that the checks tendered in payment by the employee were not "checks" in the sense of OCGA §§ 11-3-104(1)(b) and 16-9-20(a) because when tendered to the printer they contained no sum certain, as contemplated by the statute. Held:

1. Under universally recognized principles of agency, the acts of an agent acting within the scope of his authority are those of his principal and are binding upon the latter. OCGA § 10-6-51; Home Materials v. Auto Owners Ins. Co., 250 Ga. 599, 300 S.E.2d 139 (1983); Ford Motor Co. v. Abercrombie, 207 Ga. 464, 62 S.E.2d 209 (1950). Agency can be either express or implied and can arise from, or be inferred from, any of a number of circumstances. OCGA § 10-6-1; see also Home Materials v. Auto Owners Ins. Co., supra; Greenbaum v. Brooks, 110 Ga.App. 661, 139 S.E.2d 432 (1964).

The evidence in the instant case indicates that the employee was acting as Hutchens' agent when he tendered the check in payment of his employer's obligation, and, moreover, that the printer was likewise acting as Hutchens' agent when, upon Hutchens' oral authorization by telephone, and in good faith reliance on his authorization, he filled in the amounts due on the appropriate lines of the checks.

If, as in the instant case, the principal receives the benefits of a transaction made by the agent allegedly without the principal's authorization, the principal is still bound. Rowland v. Farmers Bank, 52 Ga.App. 50, 182 S.E. 81 (1935). If the principal does not wish to ratify the transaction, he must act promptly and affirmatively to...