Quillian & Bros. v. Wales Adding Machine Co.

Bloodworth, J. (After stating the foregoing facts.) While the defendants alleged in their plea that Clary was the agent of the plaintiff, there is no evidence that in this transaction he was anything more than an agent to sell, a special agent. Indeed, D. T. Quillian, a member of the defendant firm, swore that “this man Clary came to us because I called the Wales Adding Machine Company and told them to send a man to fix the machine we had.” The question of the sale arose after the arrival of Clary. “Agency to sell does not necessarily carry with it agency and authority to collect.” Collins v. Crews, 3 Ga. App. 238 (1) (59 S. E. 727). It is a well-recognized principle of law that when a contract made by an agent is relied on, the authority of the agent must be shown. Not only did the law put the purchaser on notice that “in special agencies for a particular purpose, persons dealing-with the agent should examine his authority” (Civil Code of 1910, § 3595; Baldwin Fertilizer Co. v. Thompson, 106 Ga. 480 (1) (32 S. E. 591) ; Americus Oil Co. v. Gurr, 114 Ga. 624 (3) (40 S. E. 780); Southern Ry. Co. v. Grant, 136 Ga. 303 (2, 2a) (71 S. E. 422, Ann. Cas. 1912C, 472)), but the very contract which the defendants signed expressly provided that “no representations or agreements made by an agent or any other person, not included herein, shall be binding.” In Littleton v. Loan &c. Asso., 97 Ga. 172 (25 S. E. 826), the 1st headnote is as follows: “One who deals with a special agent, knowing at the time the limits within which the agent, under the terms of his appointment, has authority to bind his principal, is bound to act with reference to this knowledge, 'and can not hold the principal liable for loss occasioned by acts 'of the agent in excess of, or contrary to, the latter’s authority in the premises.” See Inman v. Crawford, 116 Ga. 63 (2) (42 S. E. 473). Should we concede that the alleged agent was authorized to collect for his principal (which we do not), he would not, with [137] out express authority to do so, be authorized to accept articles of merchandise in settlement of the account of his principal. Citing a number of cases to support the proposition, Mr. Justice Lewis, in Walton Guano Co. v. McCall, 111 Ga. 116 (36 S. E. 470), said: “As a general rule a special agent or attorney to collect a debt is not authorized to receive anything as a payment thereon except actual cash.” See Murray v. Walker, 44 Ga. 58 (1). It can not be seriously insisted that the plaintiff, by retaining the old machine, ratified the act of Clary, for'there is no evidence that the plaintiff knew that Clary had taken possession of it. It seems to us that it is clearly established by the evidence that Clary exceeded his authority in making the alleged agreement to take the old adding machine as a part payment on the new one, and that the writing signed by the defendants put them on notice that he had no such authority; and therefore the plaintiff company was not bound by his alleged agreement to take the old machine. Judgment affirmed. Broyles, G. J., and Luke, J., concur.