Indiana Fruit Co. v. Sandlin

Lumpkin, J. (After stating the foregoing facts.) .1,2. It is declared in the Civil Code, §3015, that “the fact that property is placed in the hands of a broker to sell does not prevent the owner from selling, unless otherwise agreed. The broker’s commissions arc earned when, during the agencjg he finds a purchaser ready, able, and willing to buy, and who actually offers to buy on the terms stipulated by the owner.” If, however, the owner agrees with an agent or broker that the latter shall assist him in procur [225] ing a purchaser, and in bringing about a sale, and shall perform certain duties in connection therewith, and receive a stipulated compensation if a sale is made, whether it he consummated by the agent or the owner; and if the agent is the efficient cause of procuring a purchaser and bringing him and the owner together, and discharges all the duties imposed upon him by the contract, and a sale is made to the purchaser thus procured by him, although it may be consummated by the owner, the agent will be entitled to his commission. Mousseau v. Dorselt, 80 Ga. 566; Doonan v. Ives, 73 Ga. 295. 3, 5. An agency can not be proved by the declarations of the alleged agent; nor do the sayings of the latter, in the absence of any proof of agency, bind the alleged principal. Harris Loan Co. v. Elliott Co., 110 Ga. 302; Wynne v. Stevens, 101 Ga. 808; Amicalola Marble Co. v. Coker, 111 Ga. 872. Where declarations of an agent are admissible, the better practice is to require proof of agency before admitting them in evidence. In any event, they ought not to be received in evidence before proof of the agency, unless the party tendering them offers in good faith to supplement them by other and independent evidence of the agency; and if such offer is not made good, the declarations ought to be excluded from the consideration of the jury. Abel v. Jarratt, 100 Ga. 732. In the present case, although evidence of negotiations with an alleged agent and his sayings may have been admitted without proper foundation by proof of the existence of the agency, yet, under the whole evidence, there was some testimony from which the jury might have inferred the existence of an agency. Thus, there was evidence that, shortly after the negotiations between the plaintiff and the alleged agent in regard to the purchase of the fruit, the person claimed to be the principal came to the property in company with the alleged agent and made an examination with reference to a purchase. And though, while on the stand as a witness, the alleged principal denied the existence of any agency or authority on the part of the alleged agent to bind him, he admitted that he had telegraphed to such person to examine the fruit and give him an opinion as to its value. The object, too, was not to bind the alleged principal by the acts of the alleged agent, but to show that the plaintiff was instrumental in [226] effecting the sale, which was consummated with the owner (or its officer, it being a corporation). C. One ground of the motion for a new trial complains of a charge given by the judge to the jury. The ground does not set out the entire charge on the subject, or even the entire sentence. We can not commend the practice of excepting to fractions of a sentence in a judge’s charge. It is better to at least' give the entire sentence; and an exception to mere disjointed fragments will often be so improper that this court will not deal with it at all. If the part of the sentence to which exception is taken be considered in connection with its context, we think it does not require a reversal. If some of the words were open to criticism, yet in view of the issues involved and the entire charge, no new trial is necessary. There was no error in overruling the motion for a new trial on all the grounds. Judgment affirmed. All the Justices concur.