Summary
holding that acceptance of defendant's performance estopped plaintiff from denying the validity of a contract, even though the plaintiff's agent entered into the contract without authority
Summary of this case from McDonald Ga. Commerce Ctr. 400, LLC v. F & C Logistics, Inc.Opinion
17461.
ARGUED MAY 14, 1951.
DECIDED JUNE 11, 1951.
Complaint for land. Before Judge Brooke. Cobb Superior Court. February 23, 1951.
Luther C. Hames Jr., Smith, Kilpatrick, Cody, Rogers McClatchey, and Sidney Haskins, for plaintiff in error.
Willingham, Cheney, Hicks Edwards, contra.
Although a principal is not bound by a sealed instrument, signed by an agent without authority to execute the same under seal, yet, having allowed the opposite party to act upon the instrument in a way to be prejudiced and to his detriment but to the benefit of the principal, the principal is estopped from denying the validity of the instrument, and the court erred in excluding the same from the evidence and in directing the verdict for the plaintiff.
No. 17461. ARGUED MAY 14, 1951 — DECIDED JUNE 11, 1951.
The defendant in error, Mrs. Edna K. Carter, filed a suit in ejectment in June, 1935, in Cobb Superior Court, against W. B. Ferguson, the plaintiff in error, and the case remained on the docket until February, 1947, at which time Ferguson filed a plea of accord and satisfaction, which alleged a contract of settlement that had been agreed to and acted upon by the parties, and prayed for a dismissal of the suit. Attached to the plea was a copy of the contract, which was under seal and signed by both parties, but Mrs. Carter's signature was by her agent, Ruth Murray, and so noted thereafter. On the last trial of the case during the November term, 1950, and after Ferguson had dismissed his answer and relied wholly upon his plea, it was orally stipulated between the parties that the plaintiff did not have to make a prima facie case, but that the defendant assumed the burden of proof as to his plea.
Counsel for the defendant then cross-examined Mrs. Carter, and her testimony shows that on a previous trial she admitted that her daughter, Ruth Murray, was assisting her, that she had told her to sign her name and make the arrangements, and that whatever she did she was doing with her consent and authority; but her testimony now is that she did not tell her "to sign any paper" nor was "anything said about signing papers." She further testified that she had cashed a check for $5 signed by W. B. Ferguson and marked in the lower left-hand corner "rental"; that Ferguson had agreed to move back, and the check was in payment of rental for six months; and that he had "removed some plank," but that he did not move all the way back. Mr. Ferguson then testified that he signed the contract, paid the rental of $5 to Mrs. Carter and removed his building and equipment back to the line "as established by the Jeff Sanders survey." He further testified that Mr. Sanders drove stakes along the line; that a fence and rock wall were built along the line thereafter; that Mrs. Carter or Ruth Murray erected or placed a wire along the top of those stakes" and thereafter erected the fence and planted a hedge there; and that he erected the rock wall on the inside of the fence after the survey. He identified several photographs and the canceled check referred to above, all of which were tendered in evidence and admitted by the court. The defendant then offered in evidence the original written agreement entered into between the parties, dated November 10, 1936, whereby they agreed that the corner established by Jeff Sanders, County Surveyor, and the line established by him on or about October 27, 1936, should be accepted as true and correct; that Ferguson would remove on or before June 1, 1937, that portion of his building which protruded over on the land of the plaintiff, and would pay her $5 rental for the six months that his building protruded on her land; and that Mrs. Carter would thereupon enter "settled" the case in Cobb Superior Court and pay the costs thereof. This agreement was signed by Ferguson, and the signature of Mrs. Carter was placed thereon by Ruth Murray, who is the daughter of Mrs. Carter. Both signed the instrument under seal. After its introduction the court excluded it from the evidence and from the jury. An excerpt from the testimony of Mrs. Carter on a previous trial, which is substantially covered in her cross-examination above, was also introduced and read into the evidence without objection. Other evidence was introduced and allowed, but it is not presented here since it is not necessary for a determination of the case.
At the conclusion of the evidence, the court, on motion of counsel for the plaintiff, directed the verdict for the plaintiff and rendered a judgment thereon. A motion for new trial was filed and later amended and, after a hearing by the trial judge, overruled, and the exception here is to that judgment. The motion for new trial was in three general and five special grounds, the substance of which is: (1) the court illegally and erroneously excluded an agreement signed by the parties from the jury, which was harmful to the movant; (2) there were issues of fact presented by the evidence, which should have been passed on by the jury, and the court erred in taking the case from the jury and directing the verdict for the plaintiff. The decision here will consider the motion as a whole without deciding each ground of the motion, as the entire case revolves around the agreement made and entered into between the parties on November 10, 1936.
Where an agent without authority to execute a sealed instrument signs a contract under seal for his principal, the later is not bound unless ratification thereof be also under seal. Rowe v. Ware, 30 Ga. 278; Pollard v. Gibbs, 55 Ga. 45; McCalla v. American Freehold Co., 90 Ga. 113 ( 15 S.E. 687); Overman v. Atkinson, 102 Ga. 751 ( 29 S.E. 758); Lynch v. Poole, 138 Ga. 303 ( 75 S.E. 158). And this is true notwithstanding the contract executed is not required to be under seal. United Leather Co. v. Proudfit, 151 Ga. 403 ( 107 S.E. 327); Neely v. Stevens, 138 Ga. 305 ( 75 S.E. 159). However, the plea here is not based on the contractual obligation alone, as it alleges facts showing performance of the contract to the detriment of the pleader and to the benefit of the plaintiff, and these allegations are sufficient to invoke the doctrine of estoppel. See Fidelity Deposit Co. v. Nisbet, 119 Ga. 316 ( 46 S.E. 444); Lynch v. Poole, 138 Ga. 303, 305 (supra); Askew v. Amos, 147 Ga. 613 ( 95 S.E. 5); DeVore v. Baxter, 155 Ga. 109 ( 116 S.E. 610); National Land c. Co. v. Zugar, 171 Ga. 228 ( 155 S.E. 7); Duncan v. Beasley, 174 Ga. 28 ( 161 S.E. 829). There was testimony supporting the plea; therefore the court erred in excluding the instrument, not because it was a valid contract but because it was admissible to state the agreement as made; and, having accepted performance by the other party, the defendant in error was estopped from denying its validity. In Walker v. Reese Co., 110 Ga. 582 ( 35 S.E. 771), where an answer to an action set up a plea of accord and satisfaction, based upon specified acts, but the evidence failed to establish this defense — although it did prove an accord and satisfaction of a different character — a verdict in favor of the plea was unauthorized. But there the consideration shown by the evidence was different from that shown by the plea. Here the plea is not based merely on the contractual obligation alone, but it further alleges full performance thereof by the defendant, accepted by the plaintiff, and she admits receiving and now holding money paid to her in performance of the contract. It follows that the satisfaction alleged is the same satisfaction that was proved, and the court erred in failing to grant the motion for new trial, as there was error in directing the verdict for the plaintiff and in excluding the agreement from the evidence.
Judgment reversed. All the Justices concur, except Hawkins, J., who is disqualified.