Lawhon v. Henshaw

• Decision Date: 22 November 1940
• Docket Number: 28323.
• Citation: 11 S.E.2d 846,63 Ga.App. 683
• Parties: LAWHON et al. v. HENSHAW.
• Court: Georgia Court of Appeals

11 S.E.2d 846

63 Ga.App. 683

LAWHON et al. v. HENSHAW.

No. 28323.

Court of Appeals of Georgia, Division No. 1.

November 22, 1940

James A. Branch and Thos. B. Branch, Jr., both of Atlanta, for plaintiffs in error.

Spalding Sibley, Troutman & Brock and Harvey Hill, all of Atlanta for defendant in error.

MacINTYRE Judge.

Marsh Henshaw sued Ragsdale-Lawhon-Weill Company a partnership, to recover $625 on a draft given as the purchase price of three mules. The judge, sitting without a jury, returned a verdict in favor of the plaintiff. The motion for a new trial is based solely on the general grounds. The only question to be determined is whether there was any evidence to prove that one Roy Tapp was acting as agent for the defendant at the time of the sale of the mules in question and the execution of the draft here sued on.

The plaintiff testified that about the middle of October, 1937 Tapp came to him in Kentucky and stated that he was the agent of Ragsdale-Lawhon-Weill Company, hereinafter referred to as the defendant company, to buy mules, and bought 23 mules and gave him a draft for $3,840 on the defendant company, which draft was on a printed form headed: "Ragsdale-Lawhon-Weill Co. Live Stock Commission Merchants, Atlanta, Ga." This draft was paid upon presentation. About a month and a half thereafter, on November 30, 1937, Tapp again came to the plaintiff's place of business and stated he needed three mules to fill out a car, and gave him a like draft on the defendant company, except that it was for $625 for three mules. Henshaw turned the mules over, as he understood it, to Tapp as agent of the defendant company. Payment was refused on this last draft. Another witness, Powell, who lived in Kentucky, testified that he and Tapp came to Atlanta on one occasion on or about the last of November, 1937, and that "Mr. McClure, their [defendant's] bookkeeper, *** gave him [Tapp] a check book or draft book, or something of that kind, and some tin tags to tag them [the mules] in the tails like they do a lot of times when they ship them [the mules]. *** When we were fixing to come home *** we walked down the street together and he [Mr. Ragsdale, a member of the defendant company, a partnership] put his arm around Roy [Tapp] and said 'Roy, don't buy all the best, but buy what you think you can make money on."' Other evidence showed that the mules in both cars were delivered to the defendant company at its place of business. The declarations of Tapp, who was assuming to act as agent for the defendant company, to the plaintiff would not by themselves be admissible to prove agency, yet when such declarations of the agent are "accompanied by other evidence as to the conduct of the person in the character of agent, and acceptance by the alleged principal of the fruits of the agency, such declarations are admissible in evidence." Weiner Brothers Company v. Tucker, 139 Ga. 596 (1), 77 S.E. 811; Scott v. Kelly-Springfield Tire Co., 33 Ga.App. 297, 298, 125 S.E. 773; Render v. Hill Brothers, 30 Ga.App. 239, 117 S.E. 258; Palmer-Murphey Company v. Fruit Haven Farm, 34 Ga.App. 153, 128 S.E. 693; Rome Insurance Co. v. Thomas, 11 Ga.App. 539, 541, 75 S.E. 894.

Roy L. Tapp, the alleged agent, testified on direct examination: "I have had a connection with Ragsdale-Lawhon-Weill Company. I bought some mules for them is what I shipped. I handled some mules before I bought mules for them. Mr. Ragsdale gave me authority to buy them for him. That firm furnished me with drafts and other identifications for their firm with which to buy mules. Some of the other identification items were this bank draft and tin tags to put in these mules' tails with numbers. Their bookkeeper gave them to me, McClure I think is the name. Mac is what they call him. I talked to Mr. Ragsdale two or three different times. He told me to buy them as cheap as I could and not try to buy all the best. He said if I could buy anything to make money, to do it. They were supposed to pay for them. They furnished me with drafts for payment. He told me to buy these mules as cheap as I could and not to try to buy the all the best. He said to buy anything that looked like it would make money. *** On November 30, 1937, I purchased three mules for Ragsdale-Lawhon-Weill Company from Mr. Henshaw. I lacked three mules of having a full car, and I bought these three to fill out the car with. I gave him a draft on Ragsdale-Lawhon-Weill Company for $625.00."

The defendant company contends in its brief that the following testimony brought out on...