Reid v. Humber

• Decision Date: 31 July 1873
• Citation: 49 Ga. 207
• Parties: RICHMOND A. REID, plaintiff in error. v. ROBERT C. HUMBER, defendant in error.
• Court: Georgia Supreme Court

49 Ga. 207

RICHMOND A. REID, plaintiff in error. v. ROBERT C. HUMBER, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873.)

Principal and agent. Factors. Before Judge Bartlett. Putnam Superior Court. March Term, 1873.

This was an action on the case brought by Humber against Reid, alleging that Humber, in the year 1867, delivered to Reid, at Eatonton, as the agent of Sims & Company, factors and commission merchants in Savannah, a lot of cotton, to be consigned to said factors with instructions not to sell said cotton without further orders from Humber; that Reid took possession of said cotton, sent it to said factors, and negligently failed to communicate said order, whereby said cotton was sold at thirteen and one-half cents per pound, when, if said orders had been obeyed, Humber would have realized thirty-three cents per pound. Suit was brought for the difference in the prices above stated.

The defendant pleaded as follows:

1st. General issue—not guilty.

2d. That defendant was the agent of Sims & Company, and entered into no understanding and agreement in respect to the sale and consignment of the cotton, and did not exceed his authority in the premises.

3d. Former recovery, in this: that, at the May term of Chatham Superior Court, in the year 1868, Humber brought his action on the case against Sims & Company, alleging that he was damaged by the sale, contrary to and against orders, of this identical lot of cotton, and that at the July term of said Court, the said Sims & Company recovered a judgment against the said Humber, which still remains in full force and effect.

The jury returned a verdict for the plaintiff. The defendant moved for a new trial, upon the ground that the Court erredin charging the jury as follows.

*"The law imposes upon a party who represents himself as the agent of another, the obligation to communicate to the principal the instructions given by persons dealing with such agent, and if the jury conclude, from the evidence, that the plaintiff instructed the defendant, as agent, to instruct his principal not to sell his cotton until further orders, (and no form of words is necessary to convey such instructions, (if the words used were sufficient to convey such instructions, and the defendant failed to communicate such instructions, he is guilty of a tort. If the jury should believe from the evidence that the plaintiff has been damaged by such tortious act, he is entitled to recover such amount of damages as the evidence shows he has sustained."

The motion was overruled, and the defendant excepted.

Lawson & Fitzpatrick, for plaintiff in error.

Reese & Reese, for defendant.

TRIPPE, Judge.

It was conceded in the argument that, unless the rule be changed by the Code, an agent is not liable to a third person for damage resulting to him from the non-perfomance or neglect of a duty which the agent owes to his principal. To this point the authorities are numerous: Story on Ag., sees. 308, 309, 310; Sh. and R. on Negligence, sec. 111; 1 Hilliard on Torts, 123. This was admitted by counsel in the argument, but it was claimed that, by sections 2213 and 2951, new Code, the law is changed. In the first of those sections it is declared, that an agent is responsible "for his own tortious acts, whether acting by command of his principal or not." The next section (2951) defines a tort to be "a legal wrong committed upon the person or property, independent of contract." It may be either, 1st. A direct invasion of some legal right of the individual. 2d. The...