United Leather Co. v. Proudfit

• Decision Date: 14 April 1921
• Docket Number: 2217.
• Citation: 107 S.E. 327,151 Ga. 403
• Parties: UNITED LEATHER CO. v. PROUDFIT ET AL.
• Court: Georgia Supreme Court

107 S.E. 327

151 Ga. 403

UNITED LEATHER CO. v. PROUDFIT ET AL.

No. 2217.

Supreme Court of Georgia

April 14, 1921

Syllabus by the Court.

An instrument executed under seal by an agent, in order to be valid, must be accompanied by the agent's authority also under seal. And this is true notwithstanding the contract executed is not required to be under seal.

There is nothing alleged in the petition which can be held a ratification of the contract or that will work an estoppel by conduct on the part of the defendant.

The court did not err in dismissing the petition on demurrer.

Error from Superior Court, Bibb County; H. A. Mathews, Judge.

Suit by the United Leather Company against B. N. Proudfit and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Harris Harris & Witman, of Macon, for plaintiff in error.

Ryals & Anderson, of Macon, for defendants in error.

HILL J.

Willingham Loan & Trust Company, as agent for Mrs. Proudfit, executed a lease contract under seal for a certain storehouse for the term of five years, and took notes, as agent, from the lessee, United Leather Company, payable to the principal each month. No authority from the principal to execute the contract under seal appears from the petition. Was the contract, therefore, invalid because authority under seal from the principal to the agent to execute the contract did not accompany the instrument?

A deed to lands is not required to be under seal in this state. Civil Code 1910, § 4179; Atlanta, etc., Ry. Co. v McKinney, 124 Ga. 929 (5), 53 S.E. 701, 6 L.R.A. (N. S.) 436, 110 Am.St.Rep. 215; Henderson v. Howard, 147 Ga. 371, 94 S.E. 251. A lease contract to land for years is likewise not required to be executed under seal. But the agent in the instant case did execute the lease under seal. This court has held a number of times to the effect that where an instrument is executed by an agent under seal, the authority of the agent to so execute must likewise be under seal, even though the contract executed is not required to be under seal, in order to give validity to the contract. Ingram v. Little, 14 Ga. 173, 58 Am.Dec. 549; Rowe v. Ware, 30 Ga. 278; Pollard v. Gibbs, 55 Ga. 45; McCall v. American Freehold Land, etc., Co., 90 Ga. 113, 15 S.E. 687; Overman v. Atkinson, 102 Ga. 750, 29 S.E. 758; Lynch v. Poole, 138 Ga. 303, 75 S.E. 158; Neely v. Stevens, 138 Ga. 305, 75 S.E. 159; Henderson v. Howard, supra. And there is good reason for this. An action on a simple contract not under seal (a promissory note for instance) must be brought within six years. Civil Code 1910, § 4361. But in a contract under seal the action can be brought any time within 20 years. Civil Code 1910, § 4359. A "specialty" is a contract under seal. Civil Code 1910, § 4219. Therefore, when the agent in the present case executed the contract under seal, which it was not authorized to do by an instrument under seal, the agent made it a "specialty" which could, if valid, be sued on at any time within 20 years. And this act on the part of the agent increased the liability which would be incurred under a simple lease contract, and the principal cannot be thus bound without specific authority accompanying the execution of the contract, or by some act of ratification, which we will consider later. It cannot be assumed, merely because the contract was executed under seal, that the presumption is that it was done by authority of the principal. The principal repudiated it by her demurrer at the earliest possible time.

But the plaintiff insists that the case of Drumright v. Philpot, 16 Ga. 424, 60 Am.Dec. 738, being older than the cases cited above, with the exception of the Ingram Case, is controlling, inasmuch as the Ingram Case has been "virtually repudiated" by this court. In the Drumright Case, the trial judge was requested to charge as follows:

"That an authority, by deed, is necessary, in order to bind the principal under seal; also that a partner, though the articles of partnership were under seal, is not empowered to bind his copartners by deed, without an authority of as high a nature; that, if the principal acknowledged that he gave the agent authority to execute a deed, yet the acknowledgment itself is not sufficient to prove it, without the production of an authority under seal."

He declined to do so, and exception was taken to such refusal. This court speaking through Judge Lumpkin, held that such refusal to charge was not error, and affirmed the judgment of the lower court. It is true that the Ingram Case, which is older and holds to the contrary, has been criticized; but so far as we are aware, it has never been overruled by this court, and is authority on the question at issue as much as any of the other cases cited above. In delivering the opinion of the court in the Drumright Case, Judge Lumpkin said:

"It is not my present purpose to controvert the old rigid doctrine of the common law, which asserts that no prior authority or subsequent ratification, either verbal or by writing, without seal, is sufficient to give validity to an instrument, as the deed of the party. I yielded a reluctant assent to this threadbare [technically] technicality in Ingram v. Little, 14 Ga. 173."

But even in the Drumright Case, Judge Lumpkin said (16 Ga. 431):

"If the act of one partner be a good and valid act in itself, it will not be rendered the less so, if done by a specialty, provided the seal do not vary the liability." (Italics ours.)

As pointed out above, the seal does increase the liability in the instant case. And it is worthy of mention in this connection that the learned judge who delivered the opinion in the...