Opinion
33831.
DECIDED JANUARY 23, 1952. REHEARING DENIED FEBRUARY 28, 1952.
Trover; from Taylor Superior Court — Judge Fort. September 7, 1951.
H. Thad Crawley, Martin, Snow Grant, for plaintiff.
Dan S. Beland, J. R. Lunsford, for defendant.
There being issues of fact which should have been submitted to the jury, the trial judge, having directed a verdict for the plaintiff, did not err in granting the defendant's motion for a new trial.
DECIDED JANUARY 23, 1952 — REHEARING DENIED FEBRUARY 28, 1952.
The Commercial Credit Corporation brought an action of trover against Herbert P. Noles to recover a 1950 Studebaker automobile alleged to be worth $1457.46. The defendant in his answer alleged substantially that on October 8, 1949, he executed a conditional-sales agreement under which title to said automobile remained in the McCranie Motor Tractor Company, and that this company transferred the agreement to the plaintiff corporation on the same day. The defendant made the payments of $80.97 on the 8th day of the month as called for by said agreement, from October 8, 1949, through March 8, 1950, to the plaintiff. On or about April 22, 1950, he paid $1457.46 in cash to the plaintiff at its office in Macon, Georgia, and at that time the conditional-sales agreement was stamped and marked paid by the plaintiff and given to the defendant. The said amount was in full payment of the entire balance due the plaintiff corporation by the defendant.
Upon the trial of the case, the defendant assumed the burden of proof in support of his plea of payment. The defendant Noles testified in part that he had made six of the monthly payments to the Commercial Credit Corporation in Macon and then went there and paid them the balance of the remaining eighteen monthly payments; that he made the payment in cash, most of which was in twenty-dollar bills, with one or two fifty-dollar bills and about three or four hundred-dollar bills; that he made the payment at the Commercial Credit Corporation's office in the Professional Building in Macon; that he told the man he paid the money to what he wanted to do, and this man went to the filing cabinet and got a regular brown file; that the man who received the payment took the same paper signed by Noles when he bought the automobile, stamped it "Paid in Full," and gave it to Noles; that this man was working in the office and was dressed in a white shirt; that he had charge of the papers and was "fooling around" with them; and that Noles later carried the contract thus stamped to Eastman, Georgia, and there had it canceled of record.
On cross-examination, Noles testified in part that he also had an account for a refrigerator with the plaintiff corporation, and that he had paid it out with his regular payment on April 8, 1950; that the man to whom he paid the money on his automobile contract, on or about April 22, 1950, had black hair, was about thirty to thirty-five years of age, and weighed about 135 pounds; that he agreed to pay the finance and insurance charges of $494.37 but did not ask for a refund of any of these charges; and that he had received the refrigerator contract in the mail about three weeks after the automobile contract had been turned over to him. The defendant, Noles, also introduced the contract, stamped "Paid in Full," which was signed by him and the McCranie Motor Tractor Co., and designated as "For Recording."
The plaintiff introduced the testimony of J. G. Clemments, one of its unit managers, in charge of purchasing contracts and making collections in a certain territory, to the effect that when the Commercial Credit Corporation bought the contract, he typed up an office ledger card and mailed the recording copy of the contract to the clerk of the court in Eastman, Georgia, for recording; that the corporation then had another contract with Noles for a refrigerator; that both contracts were placed adjacent to each other in a file drawer but in separate folders; that the refrigerator contract was paid up on April 4, 1950; that on June 6, 1950, upon receiving a letter from Noles, he looked into the automobile file for other correspondence and found that the copy of the contract which had been sent for recording was not in its file; that a copy marked "Quadruplicate" containing Noles' financial statement was in the file drawer; that the original had been sent to the corporation's office in Wilmington, Delaware; that a cashier's receipt is given for cash payments, but Noles had later stated that the contract was the only receipt he had; that Noles had offered to make one or two monthly payments but these were not accepted by the plaintiff corporation; that the cashier received payments over the counter, keeping the money received in a locked drawer; that when the cashier was absent, an alternate cashier took her place to receive payments, keeping the money in a separate locked drawer; that only the witness and the office manager, one Reed, had authority to receive payment in advance of the due date; that a payment by check of $90.53 had been received from Noles in April, 1950, but that no cash had been received from him; that the records of the office did not show the payment; and that the money had never been discovered in the office. Five other employees of the plaintiff also testified that they had not seen Noles come into the office on April 22, 1950. The cashier testified that she had not received the money from Noles, although she was the only one who received cash in the office, besides the alternate cashier who was no longer with the company. T. B. Reed, the plaintiff's office manager and assistant treasurer in charge of the whole office, testified that he had to approve payments received in anticipation of an entire balance; that the duplicate of the contract had probably been given to Noles by the dealer, and the triplicate (for recording) and quadruplicate were retained in files by the plaintiff; that the stamp was placed on the contract by a stenographer, although the witness did not know which of the three stenographers employed had stamped the contract obtained by the defendant, "Paid in Full."
The trial judge directed a verdict for the plaintiff, and the defendant moved for a new trial on the ground that there were issues of fact which should have been passed upon by the jury. The trial judge granted the motion and ordered a new trial of the case. To this judgment, the Commercial Credit Corporation excepted.
The question raised by the exception is whether the evidence demanded a verdict for the plaintiff. If it did, it was error to grant the defendant's motion for a new trial. But if there were issues of fact raised by the evidence, then the trial judge in his discretion properly granted a new trial to correct his error in directing a verdict for the plaintiff.
The plaintiff in error contends that the possession of the written contract by one of its agents does not impliedly authorize such agent to receive payment of money on the contract before the time such payment falls due, according to the terms of the contract, and that even if there were such a presumption of authority, it was rebutted by the plaintiff's evidence that its agents had no such authority.
Regardless of whether an implication of authority to collect before maturity may arise where the agent has possession of an instrument which is evidence of the debt (see Code, § 4-308), the debtor who has made a payment before maturity is not precluded from otherwise establishing the authority of the agent receiving such payment. Roberts v. Bank of Eufaula, 20 Ga. App. 221 (1) ( 92 S.E. 1015). Noles' testimony was to the effect that he went to the plaintiff's Macon office and told a man who appeared to be working in the office that he wanted to pay off his automobile contract; that this man went to the filing cabinet and got a regular brown file from which he took the same paper signed by Noles when he bought the automobile, and after Noles paid him $1457.46 in cash, this man stamped the contract, "Paid in Full," and handed it to Noles; that the man in the office to whom he paid the money appeared to be about thirty-five years of age, with dark hair, weighing 135 pounds, wearing a white shirt, and was in charge of handling the office papers. Noles, however, at the time of the trial, was unable to positively identify the man to whom he paid the money on April 22, 1950.
"Payment of money due to the creditor or his authorized or general agent, or one whom the creditor accredits as agent though he may not be so, or to his partner interested with him in the money, shall be good." Code, § 20-1001. Where a principal has "placed an agent in such a situation that a person of ordinary prudence conversant with business usages and the nature of the particular business is justified in assuming that such agent has authority to perform a particular act and deals with the agent upon that assumption, the principal is estopped as against such third person from denying the agent's authority; he will not be permitted to prove that the agent's authority was, in fact, less extensive than that with which he apparently was clothed. This rule is based upon the principle that where one of two innocent parties must suffer from the wrongful act of another, the loss should fall upon the one who, by his conduct, created the circumstances which enabled the third party to perpetrate the wrong and cause the loss." 2 Am. Jur. 86, 88, Agency, § 104; Code, § 37-113. We are cognizant of the general rule that "an agent's authority to make collections for his principal may not ordinarily be extended by implication so as to justify his collecting money before it is due, particularly a considerable time before the obligation matures." 100 A.L.R. 389, 390. This rule, however, does not apply where the principal by his acts or conduct makes it appear, to a person of reasonable prudence and good faith who deals with his agent, that such agent has such authority, for the principal may not assert that his agent has authority less extensive than that apparent authority which is reasonably deducible from the conduct of the parties. Futch v. Royster Guano Co., 51 Ga. App. 305 ( 180 S.E. 368); Davis v. Citizens-Floyd Bank c. Co., 37 Ga. App. 275 ( 139 S.E. 826); Armour Fertilizer Works v. Abel, 15 Ga. App. 275 ( 82 S.E. 907); Germain Co. v. Bank of Camden County, 14 Ga. App. 88 ( 80 S.E. 302); Fitzgerald Cotton Oil Co. v. Farmers Supply Co., 3 Ga. App. 212 ( 59 S.E. 713); 2 Am. Jur. 136, Agency, § 171; 100 A.L.R. 389, 390.
If the defendant paid the money to someone working in the plaintiff's office in the presence of other employees, in the manner and under the circumstances as disclosed by the defendant's testimony, a jury would have been authorized to find that such payment was in satisfaction of the indebtedness as represented by the contract in question. Whether or not the payment was made and whether the party to whom it was paid, if paid, had apparent authority to receive it were issues of fact which should have been submitted to the jury, and the trial judge, having directed a verdict for the plaintiff corporation, did not err in granting the defendant's motion for a new trial.
Judgment affirmed. Felton and Worrill, JJ., concur.