text:
    477.
    CAPITAL CITY BRICK COMPANY v. JACKSON.
    1. Tlie presumption that the president of a business corporation is authorized to execute negotiable instruments in the name of. the corporation arises only where such instruments are apparently made for corporate purposes, in the ordinary course of the corporate business.
    2. A negotiable promissory note made in the name of the corporation by its president, in which he is named as payee, is prima facie void as to such corporation. The burden is upon the holder of such note to show that it is in fact the contract of the corporation.
    S. The naming of the officer of the corporation, who executes a note ostensibly in its behalf, as the individual payee therein is a danger signal, and such note “bears its death wound upon its face.”
    4. Such instrument being sufficient in itself to put the taker on inquiry, he is chargeable with whatever knowledge he could have acquired hv such inquiry, and can not claim the protection and rights of a bona fide holder.
    5. The presumption that the note sued on was not the authorized contract of the corporation, not having been overcome, but being confirmed, by the evidence, the verdict should he set aside and a new trial granted.
    Complaint, from city court of Atlanta — Judge Eeid. March 9, 1907.
    Submitted October 14,
    Decided November 11, 1907.

      E. M. & G. F. Mitchell, for plaintiff in error.

      Tye, Peeples, Bryan & Jordan, H. M. Scott, contra.
   Hill, C. J.

This writ of error challenges the validity of a judgment based on the following promissory note: “Atlanta, Ga., July 1st, 1903. Ninety days after date we promise to pay to the order of T. F: Stubbs two hundred and eighty-three and 20/00 dollars at any bank in Atlanta, Georgia. Yalue received. Capital City Brick Company, per T. F. Stubbs, Pres.” The note was endorsed in blank by Stubbs and transferred to the plaintiff in payment of a pre-existing debt which Stubbs owed him. The defense made by the corporation was, that Stubbs had no authority to make said-note, and that the plaintiff was not a bona Me holder of the same, as he knew that Stubbs had no right or authority to issue the note in the name of the corporation,, or could have known it by making reasonable inquiry. The evidence is clear that Stubbs did not have authority from the corporation to execute the note, and that the plaintiff took the note from Stubbs in payment of a private pre-existing debt in which the company had no interest.

The controlling question in the case is whether the note carried upon its face sufficient indicia of authority to entitle the plaintiff to'the protection and rights of a bona fide holder. It was insisted by him that the note, having been executed in the name of the company by its president, was apparently and presumptively the authorized contract of the corporation. On the other hand, the defendant insisted that the note, having been made payable to the officer as an individual, who made it in the name of the company, was sufficient to put the plaintiff on inquiry as to the authority of such officer to execute the same. A promissory note executed in the name of the corporation by its president, in the ordinary course of business, and taken by one not connected with the corporation, may carrjr with it the presumption that it was issued for corporate purposes and under lawful authority; but a note executed in the name of the corporation by its president, payable to himself as an individual, is accompanied by no such presumption. On the contrary, this fact raises the presumption that such note is not the authorized act of the corporation, and is itself notice that it is without the scope of his general power as such official. Such a note is a danger signal, which the discounter or purchaser disregards at' his peril. In the language of Lord Denman, “it bears its death wound on its face.” Joyce, in his work entitled “Defenses to Commercial Paper,” sec. 485, states the principle as follows: “It is out of the usual course of business for a corporation-to issue its obligations to its officers. The fact that an obligation is so made suggests that it may be .irregular, and consequently a third person talcing such an obligation, and knowing that the payee is an officer of the maker corporation, is put upon his inquiry as to whether or not the obligation has been lawfully issued. When the note or obligation shows upon its face that it is made to an officer, the note itself conveys the notice to all persons into whose hands it may come.” We think this statement of the law is sound in principle; and it is abundantly supported by the highest authorities. In Park Hotel Company v. Fourth National Bank (C. C. A. 1898), 86 Fed. 742, the note sued on was signed “Park Hotel Co., by Ed Hogaboom, Pres.,” was payable to Ed Ilogaboom, and was indorsed by him to a third party, who took the note without evidence of its invalidity, except as appeared from inspection. In an elaborate opinion; collating the authorities, the court held that there could be no recovery against the corporation. The case is so much in point that we quote a portion of the opinion: “The general authority of- the president of a business corporation to make and discount its promissory notes gives him no power to make a note of the corporation payable to his own order, and one who discounts such a note can not recover thereon against the corporation without showing special authority for its execution. To the general rule that the acts and contracts of a general agent within the scope of his powers are presumed to be legally done and made, there is an exception as universal and inflexible as the rule. It is that an act done or a contract made with himself by an agent on behalf of his principal is presumed to be, and is notice of the fact that it is, without the scope of his general powers, and no one who has notice of its character may safely recover on it without proof that the agent was expressly and specially authorized by his principal to do the act or make the contract.” The basis of the rule is well stated by the court in the following language: '“This exception is a striking illustration of the policy of the law to prevent the possibility of conflict between the duty and the personal interest of an officer or agent. It prohibits him from acting for both himself and his principal wherever their interests clash and makes every act and contract in which he violates the inhibition voidable at the election of his principal. It forbids him to act at the same time as vendor and purchaser, or as lender and borrower, or as promisor and promisee. It forbids him to sell as the agent of his principal, and to buy for himself; to lend as the agent of his principal, and to borrow for himself; to promise as the agent of his principal, and to accept the promise and reap the benefits himself.” In Porter v. Winona & Dakota Grain Company, 78 Minn. 210, the note was made payable to “W. II. Gar-lock” and signed “The Winona & Dakota. Grain Company by W. II. Garloek, Pres.” Garloek indorsed the note in blank and transferred it to a third party. • The court held, that such a note was prima facie void, and that the person seeking to recover on it had the burden of showing that the officer assuming to execute it bad actual authority. In the course of the opinion it is said: “It [the note] was made by the president of the corporation in its name, seemingly for his own accommodation, and thus bore on its face the evidence of its invalidity. He could not by virtue of his general authority as agent bind the corporation by a contract made by him as such agent with himself; and he had no authority whatsoever, unless it was specially given, to bind it by the execution and delivery of a negotiable paper which apparently was issued for his own use and benefit. And notice of the want of authority was the instrument itself.”

In West St. Louis Savings Bank v. Shawnee County Bank, 95 U. S. 557, it appears that the cashier of a bank made his own note payable to the order of the bank, indorsed his official signature upon it, and borrowed money of one whom he told that he intended to use it to pay for some stock which he had purchased from the bank. In a suit by the indorsee against the bank, the court held there could be no recovery, because, “the very form qf the paper itself carries notice to a purchaser of a possible want of power to make the indorsement and is sufficient to put him on his guard. If he fails to avail himself of the notice and obtain the information which is thus suggested to him, it is his omul fault, and as against an innocent party he must bear the loss.” The Supreme Court of Oregon, in Saylor v. Banking Company, 38 Oregon, 204, goes to the extreme limit in support of the law here announced. In that case White as president and Marshall as secretary, without, so far as the record shows, the knowledge or authority of the directors, and without any consideration moving to the corporation, executed and delivered to White individually the promissory note of the corporation. The note was thereafter transferred by White to a private creditor, who in turn indorsed it to the plaintiff; a default judgment was subsequently rendered on it against the corporation, after service on the president. In an attack on the validity of this judgment the court held: “A promissory note of a corporation, executed by the president and secretary, to the president personally, and indorsed by him to a third party, is prima facie fraudulent, and a judgment thereon is no better than the note. The holder of such a judgment has the burden of proof as to the validity of both note and judgment.” It is needless to multiply authorities. As far as we have been able to find, there has been no contrary opinion in a case involving a similar state of facts; but both courts and standard text-writers are in accord on the subject. Brown v. Pettit, 178 Penn. St. 17; Wheeler v. Home Savings Bank, 118 Ill. 34; Third National Bank v. Marine Lumber Co., 44 Minn. 65; Wilbur v. Lynde, 49 Cal. 207; Chemical v. Wagner, 93 Ky. 525; Eastman v. Cooper, 15 Pick. 290; Wilson v. Metropolitan Elevated Ry. Co., 120 N. Y. 145; Cook on Corp. (5th ed.) §293; 10 Cyc. 942. The cases of Kaiser v. U. S. National Bank, 99 Ga. 258, and Jacobs’ Pharmacy Co. v. Southern Banking and Trust Co., 97 Ga. 573, relied upon by the defendant in error, are easily distinguishable, on the facts, from the present case. See Cheever v. Pittsburgh R. Co., 150 N. Y. 59; Rochester & Charlotte Turnpike Road Co. v. Paviour, 164 N. Y. 281 (58 N. E. 114, 52 L. R. A. 790).

The law must be as herein contended; else corporations would be at the mercy of dishonest officials, and positions of corporate trust would be prostituted to private gain, and corporate property be exhausted in payment of personal debts. A bona fide holder of a promissory note executed by an officer in the name of the corporation and payable to the officer executing it, as an individual, in legal contemplation can not exist. The person and the subject are in positive contradiction. The point in question has never been directly ruled on by the Supreme Court of Georgia; but the principle as herein announced has been substantially upheld in Dobbins v. Etowah Mfg. Co., 75 Ga. 238, where it was held that a note made by the president of the corporation to himself could not be enforced against the corporation without proof of actual authority to make it. And in Exchange Bank v. Thrower, 118 Ga. 434, where it is declared that “Authority to borrow money is one of the most dangerous powers which a principal can confer upon an agent. Whoever lends to one claiming the right to make or indorse negotiable paper in the name of another does so in the face of all the danger signals of business. He need not lend or discount until assured beyond doubt that the principal has in fact appointed an agent who by the stroke of a pen may wipe out his present fortune aud bind his future earnings. The very nature of the act is a warning; and if the lender parts with his money, he does so at his own peril.” We think the principle contended for in this opinion is fully supported by our Civil Code, §3699 : “Any circumstances which would place a prudent man upon his guard in purchasing negotiable paper shall be 'sufficient to constitute notice to a purchaser of such paper before it is due.” The fact that a note made in the name of a corporation by an officer is made payable to such officer as an individual constitutes a sufficient circumstance of itself to put a prudent man on notice that such note was made without authority, and, therefore, not binding upon the corporation. Besides this presumption of law raised by the note itself, tlie extrinsic eyidence indisputably proved that the note sued on was executed by the president of the corporation in its name, not only without authority, but in violation of the by-laws of the corporation, and was made solely for his benefit in payment of a private pTe-existing debt. The taker of the note, therefore, having been notified by its terms that it was executed without authority, was put upon inquiry, and was bound by the facts which such inquiry would have disclosed. Even if this were not so, the evidence shows that he knew at the time he took the note that it was made and given in payment of a private debt of the president as an individual, in which the corporation had no interest.- In no way was he entitled to protection as a bona fide holder, and the verdict in his favor was contrary to law and wholly without evidence to support it. Judgment reversed,.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
      485.

    WHOLESALE MERCANTILE CO. v. JACKSON.
    1; The evidence on the only material point in the case was conflicting, and we have more than once held that in such a case this court can not interfere with the finding of the jury upon the facts. . '
    2. There was no error in giving in charge to the jury the .exceptions to the statute of frauds, contained in the Civil Code, §2694, the defendant having pleaded the 7th paragraph of §2693 in defense, and there being ^ evidence to authorize such a charge. The charge on this subject, considered as -a whole, is a fair presentation of the principles applicable to the evidence. If there was error in presentísg the 3d exception to the ■ jury, the error was harmless to the plaintiff in error.

      3.. There being evidence in behalf of the plaintiff that he delivered the exact quantity of goods bought, and no dispute as to the quality or price of the goods, it was no error to charge the jury that if they believed the testimony for the plaintiff, the defendant would have no right to reject, the goods, nor any • reason for inspection. Acceptance follows necessarily on the impossibility of rejecting the goods contracted to be bought, ' when the goods delivered are in every respect the exact articles purchased.
    4. The assignments of error contained in the first, second, fifth, seventh, eighth and ninth grounds of the motion for new trial, are not, for any of the reasons assigned, erroneous.
    5. The court having more than once instructed the jury that plaintiff’s right to recover was dependent upon his compliance with his contract and acceptance of the goods by the buyer, the charge complained of in the fourth ground of the motion was not erroneous and could not be understood by the jury as relieving the plaintiff from compliance with his contract. Even if there had been ambiguity in the charge complained of in the fourth ground, it was relieved by the instruction of which complaint is made in the sixth ground.
    6. There is no merit in the seventh ground of the motion for new trial. One can not complain if the court charges the jury in accordance with his own suggestion, although such charge must necessarily be qualified, in order that the jury may be legally instructed.
    7. The charge complained of in the tenth ground of the motipn was given in compliance with an oral request, and could well have been declined if presented in writing, because the principle involved had already been fully covered in the general charge. If more specific instructions were desired, they should have been requested in writing.
    Complaint, from city court of Cartersville — Judge Foute. April 30, 1907.
    Submitted October 15,
    Decided November 11, 1907.
    Jackson brought suit against the Wholesale Mercantile Company to recover the contract price of goods sold and 'delivered as -set forth in the petition. The defendant filed a plea denying the contract of sale as alleged, and claimed that a smaller quantity of the goods were bought. It further pleaded that the alleged contract was within the statute of frauds. The issue was submitted to the jury and a verdict was rendered in favor of the plaintiff, for the full contract price as claimed by him. The Wholesale .Mercantile Company assigns error upon the refusal of a new trial. In addition to the general grounds, it insisted, in its motion for a new trial> (1) That the court erred in omitting to clearly state to the jury certain contentions of the defendant, and, by stating the defendant’s contentions inaccurately, prejudiced its case before the jury. (2) That the court erred in stating the contention of the defendant on the subject of the statute of frauds, in that the statement of the defendant’s contention under the statute of frauds was too general and indefinite. (3) That the court erred in charging the jury the first and third exceptions to subsection 7 of §2693 of the Civil Code. It is insisted that the first exception to that subsection, as set forth in §2694, and given-in charge by the court, was inapplicable, upon the ground that there was no evidence whatever tending to show that the alleged, contract of sale had ever been fully executed; and that, therefore, the court’s statement of sajd exception as a rule of law for the-guidance of the jury was erroneous and misleading, and calculated, to confuse the jury, to the injury of the defendant. Exception, is taken to the statement by the court of the third exception, upon, the same ground, and further because the court, after charging the jury the third exception, in §2694, failed to instruct the jury as to what the nature, character, and extent of the part performance of said contract of sale must have been, in order that refusal to comply with said contract would be a fraud by the defendant such as to authorize the court to compel it to perform; and it is further contended that the instruction of the court that said exceptions referred to facts which the jury must determine from the evidence, without indicating how such exceptions referred to facts, or what facts were referred to, confused and misled the jury. (4) Error is also assigned upon the following charge: “If the clerk, Hawkins, had no authority to receive the goods, if you believe that the company knew that the fruit was being put into its warehouse and had reason to believe the plaintiff expected pay therefor, you should find for the plaintiff;” defendant insisting that the charge does not limit the jury to the evidence as the basis for the conclusions of fact which may be reached by them, and that mere knowledge of the defendant that the fruit was being put into its warehouse, and’ reason for belief on defendant’s part that plaintiff expected to be paid for it, would not alone suffice to authorize the jury to find for the plaintiff; and that said charge amounted to a direction of a verdict against the defendant. (5) In the 5th ground of the motion it is contended that the court erred in charging the jury that they need not consider the custom as to the amounts generally purchased by the parties, if they found, from the evidence, that plaintiff and defendant had a contract with reference to the fruit, but that the contract would control. (6) In the 6th ground, error is assigned on the following instruction to the jury: “You will consider all the facts incident to this transaction, and whether or not this defendant company knew that these goods were being placed in their warehouse at the time they were; and if you find that they did know this, and that it was being done in pursuance of the contract which the general manager had made with this plaintiff, then the company would be bound; otherwise it would not be bound.” It is contended that this made the defendant liable without an inspection or acceptance of the goods, and without regard to the statute of frauds, and also without regard to whether the goods delivered corresponded in quality, aggregate quantity of the whole, or relative quantity- of each of the three kinds of goods bargained for. (7) It is insisted that the language of the court in response to an oral request to charge, preferred by the defendant’s counsel, contained a strong intimation that allowing the goods to be placed in the warehouse was a waiver of the right to reject them, and amounted to an acceptance, although the clerk who received them had no authority to accept them. (8) The assignment of error in the 8th ground is practically the same as that contained in the 3d. (9) In the 9th ground of the motion exception is taken to the following charge: “If you find from the evidence that these goods were bought by sample, and that the sample inspected was satisfactory to the buyer, then the defendant would be bound by the inspection he made, unless he understood that later on he had the right to examine other parcels or parts of the same. If you find that the plaintiff, by the request of the defendant, carried samples of these goods to the defendant company, and that they were examined and accepted as satisfactory to the defendant company, and goods of this same class were delivered to the defendant company, and nothing else appeared, then the company would be bound to pay for them.” (10) Immediately following the charge last quoted, and in response to a suggestion by the defendant’s counsel that the defendant had the right to refuse the fruit for not corresponding in quantity as well as quality, the judge charged the jury as follows: “I thought I had covered that. I charge you, gentlemen, that if you find that the plaintiff is mistaken about his right to deliver them all the goods he had of this kind, and that the defendant is right in insisting that it only bought seventy-five cases or whatever you find to be true, then the defendant would have the right to object to the quantity as well as the quality, if done at the proper time.” The defendant insists that this charge was erroneous because it wholly ignored the effect of the statute of frauds on the alleged oral contract of sale, and in effect instructed the jury that the defendant would be bound to accept the goods when delivered, unless the jury should find that the plaintiff was mistaken about his right to deliver' all the goods he had of the kind, and unless the jury should also find that defendant was right in insisting that it bought only the amount of -goods contended by it. It is insisted that the jury should have been instructed that the defendant had the right, on delivery of the goods, to examine the same for the purpose of determining whether they corresponded in quantity as well as quality with the contract of purchase, before accepting them, and that unless the defendant accepted them, whether its refusal to do so was right ‘or wrong, the oral contract of sale was, under the statute of' frauds, incapable of enforcement. It is further insisted that'the charge assumes that the oral contract was valid and binding, and makes the right of the defendant to refuse acceptance of the goods dependent upon the terms of the oral contract; whereas, it is insisted, unless accepted, the oral contract was invalid, under the statute of frauds.

      Neel & Peeples, for plaintiff in error.

      Colquitt Tinley, Thomas W. Milner & Son, contra.
   Russell, J.

(After stating the foregoing facts.) Summarizing the contentions of both parties, the evidence for the plaintiff tended to show that the -manager of the defendant company bargained for all of the canned peaches and tomatoes he had for sale. He testified th$t he expressly informed the manager, Mr. McCormick, that he accepted his bid in preference to that of Mr. Strickland, another buyer of' fruit, upon the ground that Mr. Strickland had only offered to take a portion of his canned goods. He further testified that he delivered the goods according to his contract, at the warehouse of the defendant, and to one of its employees, who received them and stored them in the warehouse. The defendant’s manager, Mr. McCormick, testified, that he only contracted for a fixed quantity of each of the three kinds- of fruit offered for sale by the plaintiff; that this was one of the express terms of the contract, and that under no consideration would he have bargained for as large a quantity as the plaintiff claimed to have sold him. He contended, that there had been no delivery of the goods to the defendant; that the clerk who received the goods at the warehouse was not authorized to effect an acceptance, and that as soon as he knew that the fruit was being delivered he refused to accept or pay for it. There was'no conflict as to the price at which the fruit was to -be delivered, nor any evidence tending to show that it was not the quality contemplated by the parties. 'Upon a complete review of the evidence, we find no error in the judgment refusing a new trial. We base our decision upon the following reasons:

The evidence upon the only material points in the case was conflicting, and we have more, than once held that in such a case this court can not interfere with the finding of the jury upon the facts.

There was no such error in the instruction of the court with reference to the application of the statute of frauds to the evidence submitted as will authorize a reversal of the judgment. Considered in dismembered fragments, the instructions of -the court might appear subject to the objections urged by counsel for the plaintiff in error, but when the charge upon this subject is considered as a whole and in the light of the evidence, there was no error in the court’s giving in charge to the jury, in connection with paragraph 7 of §2G93 of the Civil Code, the three exceptions provided by §2694. It is now strenuously insisted by the learned counsel for plaintiff in error that the court erred in presenting the second exception to the jury. It is apparent to any one that the evidence in behalf of the plaintiff required that the jury be instructed that although the value of the goods might amount to more than fifty dollars, the contract of sale would not have to be in writing, where there had been performance on the part of .the plaintiff and acceptance, as the plaintiff testified, on the part of the defendant. And we think, moreover, there was no error in further charging the jury that the contract of sale need not be in writing if the jury believed the contract had been fully executed. This was.held by the Supreme Court in Johnson v. Watson, 1 Ga. 348, before the passage of the act now embodied in §2694; and it was further held, in the same case, that the question of delivery by the vendor and acceptance by the vendee is one of fact for the jury. As stated by Chancellor Kent (2 Kent’s Com. 491), “when the terms of sale are agreed on and the bargain is struck, and everything which the seller has to do with the goods is completed, the contract of sale becomes absolute, and the property and risk of accident to the goods rests in the buyer.” See also Woodward v. Solomon, 7 Ga. 246. If the jury believed the testimony in behalf of the plaintiff, the contract was executed; and the jury were properly instructed to apply the first exception mentioned in §2694. It may be that the court might have more fully instructed the jury, as insisted by counsel for plaintiff in error, as to the applicability of the third exception, but in view of .the evidence of the plaintiff and the fact, as demonstrated by the' verdict, that the jury rested their verdict upon his testimony, the omission of the court in this regard would not be error of which defendant could complain; for the reason that the exception is provided for the benefit of plaintiffs, to be used in resistance of a plea that the contract is not binding because not in writing.

Conflict in the evidence arose upon the subject of the quantity of the goods sold, and whether the goods were delivered and accepted. Plaintiff in error insists, that it was indisputably established that the goods were never accepted, but were rejected the moment its authorized agent was informed of the quantity tendered and insisted on by Mr. Jackson, the plaintiff; that the clerk, Hawkins, had no authority to accept the goods for defendant, but merely the duty of reporting the same to the general manager, McCormick; and that upon his reporting in this instance, McCormick rejected the goods and refused to accept the' same. It is of course well settled that mere receipt of goods without acceptance will not meet the requirements of the statute of frauds Loyd v. Wight, 20 Ga. 578; s. c. 25 Ga. 215; Tiedeman on Sales, §66. Nor is an agent who is merely authorized to receive and count goods, or weigh them as delivered, the agent of the buyer to so accept the goods as to bind his principal. It is also true that acceptance can not be inferred from mere receipt of goods into the possession of the buyer, provided he does not retain them longér than may be reasonably necessary to enable him to examine their quality and quantity. 20 Cyc. 249. Upon these well set-tied principlés the learned counsel for the plaintiff in error based most of the contentions urged in his brief. We must not, however, lose sight of the fact that these contentions are not based upon the evidence for the plaintiff, and that the jury had the right to give the preference to his testimony. According to this testimony, he delivered to the defendant at its place of business exactly what he had contracted to sell, both as to quantity and quality; and quantity and quality both being complete, and the goods delivered at the stipulated time and for the stipulated price, the defendant had no right to reject, nor any reason for inspection. If goods of exactly the quantity and quality bargained for were delivered according to the terms of the contract, it became absolutely immaterial whether the agent who received them had or ■did not have the right to accept them. Acceptance followed necessarily on the impossibility of rejecting the goods contracted for, ■and to decline to take them would have been a fraud.

Several exceptions are taken to certain portions of 'the charge, in which it is assimied that the contentions of the defendant were not sufficiently presented to the jury; and it is also alleged that certain excerpts from the charge either contain intimations of opinion by the court, or assume facts to be in evidence which were not supported by the testimony. We have referred to several of these in the statement of facts preceding this case, but .any further discussion than is contained in the headnotes is unnecessary. Viewing them in the light of the charge as a whole, ■these exceptions are without merit. Such are the assignments of ■error contained in the 1st, 2d, 5th, 7th, 8th, and 9th grounds of the motion for new trial.

Much stress is laid on the 4th ground of the motion for new trial. The excerpt from the charge complained of (which is quoted in the statement of the case) immediately follows the instruction to the jury that the company would be liable only provided it appeared that the goods were actually accepted by the •company, and precedes the instruction complained of in the 10th ground of the motion for new trial. Judged in this connection, the jury could not have been misled or confused into believing ■ otherwise than that it was absolutely essential for the plaintiff to •demonstrate by the evidence that the defendant accepted the goods tendered by him, nor led to suppose that mere knowledge on the part of the defendant that the fruit mentioned was being put into its warehouse proved that the defendant accepted it and expected to pay for it; the court having more than once instructed the jury that the plaintiff’s right was dependent upon compliance with his contract and acceptance by the buyer.

What we have just said in reference to the 4th ground of the motion is clearly applicable to the 6th. The charge complained of in the 6th, however, relieves the ambiguity, if any existed, in the instruction complained of in the 4th ground; for the court expressly charged the jury that they could consider whether the defendant knew that the goods were being placed in its warehouse, and if the jury should find that it did know it, and that it was being done in pursuance of their contract, the company would be bound, otherwise it would not be bound. What could be plainer? 'If the delivery was being made in compliance with the contract, as testified to by the plaintiff, the company would necessarily be bound. The defendant could not ask to be relieved except upon the testimony of its manager that no such contract was made and that the contract that was made was'not complied with.

There is no merit in the .7th ground of the motion. The excerpt complained of was addressed to the jury in response to an oral request made by the defendant’s counsel, who asked the court to charge the jury that if the company did know that the goods were being placed in its warehouse by Mr. Jackson for the purpose of delivery, it would not bind the company, if it understood that it still had the right to reject them. The court assented to this proposition (stated in the presence of the jury), by using the word “yes,” thus giving it his sanction, but very properly qualified the instruction by adding that “that would depend upon the additional fact whether or not the company had the right, after the goods were actually placed in its warehouse, to examine the goods and accept or reject them.” The word “that,” in the charge quoted, refers to the proposition stated by counsel, and sanctioned by the court by the use of the word “yes” The word “yes” relates back so as to mean that the company would not be bound, if it understood that it had the right to reject the goods; and the qualification of the court simply meant that while, as before stated, the acceptance depended upon the defendant’s understanding of its right to reject (which was not a correct statement of law applicable to the evidence), the evidence must show a real right to reject. The court, therefore, while sanctioning and indorsing to the jury the proposition stated by the defendánt’s counsel, very properly qualified this statement (adopted pro tanto as his own), by further instructing the jury, in effect, that the understanding of the defendant was, after all, dependent upon and subordinate to its actual rights to accept or reject the goods, as fixed by the contract, whatever the jury might find, from the evidence, that contract to be. As there was no contention on the part of either party that he misunderstood the contract, nor any evidence showing that either party was known by the other to be acting under a misapprehension of the contract, the understanding of either party could not affect the contract, and could be of no use to the jury except in so far as it might aid in enabling them to find the true contract.

The complaints urged against- the excerpt from the charge, on which error is assigned in the 10th ground of the motion for new trial appear to us groundless, on consideration of the entire charge and the circumstances under which the instruction complained of was given. It appears in the record that the court had practically completed the charge to the jury, and that first the defendant’s counsel and then the plaintiff’s attorney had made oral requests for additional instructions. The only request refused was one preferred by the plaintiff’s counsel. Immediately following the charge which is assigned as error in the 9th ground of the motion (and which will be found in the statement of the case), defendant’s counsel suggested, “That leaves out altogether the question of quantity. They had the right to refuse them for not corresponding in quantity as well as quality.” Upon this suggestion of counsel on the subject of the quantity, the court replied to counsel, “I thought I had covered that;” and proceeded, in compliance with the suggestion, to relieve the objection of the defendant. It was addressed to only one point, but nothing more would have been required even if the request had been in writing; and the request might have been declined even if in writing, because the subject had already been fully covered in the charge to the jury. The assignments of error depend (a) partly upon the assumption that it is necessary for a trial judge to repeat, in treating of each and every phase of the case, and in every possible connection to reiterate, the law applicable to all of each .party’s contentions; (&) partly upon an alleged intimation on the part of the judge; and (c) partly upon verbal criticism of the language employed in the instruction to which exception is taken.

(a) The judge, having already fully explained the purpose and effect of the statute of frauds, was not required to repeat these instructions to the jury in connection with a charge invoked upon a different subject and one wholly disconnected with defendant’s defense under the statute of frauds. Especially is this true where the request was preferred by him who now complains, and where the request was directed expressly to only one point in the case, and was fully complied with by the court. The charge complained of in this ground of the motion did not ignore the effect of the statute of frauds, or withdraw from the jury the defendant’s defense based thereon, although the judge did not refer to the subject in connection with this instruction. The plaintiff’s case, according to his testimony, had but one foundation,, a contract of sale fully executed on his part; the defendant’s defense traveled on two legs, — the one, the plea that there was no completed contract of sale nor acceptance of the goods; the second leg, the plea in which the statute of frauds was invoked as a defense. In one view of the defendant’s case the effect of the statute of frauds was entirely immaterial. If the contract was for a limited quantity of the canned goods as a whole, and for a limited quantity relatively of each kind, and the plaintiff, in violation of the contract, attempted to deliver a larger quantity as a whole and different quantities relatively of each from those contracted to be delivered, and the defendant, as would have been its right, declined to accept them, no recovery could be had against the defendant. And this without regard to the defendant’s plea of the statute of frauds. The plaintiff’s failure to comply with the provision in reference to the quantity, and the defendant’s rightful refusal to accept the articles tendered, would defeat the sale. The statute of frauds was immaterial to either view of the plaintiff’s case as made by him in the record. If the goods were bought and delivered, as testified, according to contract, he would be entitled (regardless of the provisions of §2693 of the Civil Code) to recover the purchase-price. If the contract of sale was as testified to in behalf of the defendant, and there was no acceptance by the defendant of the goods tendered, then (regardless of the operation of the statute of frauds) the plaintiff could not recover. When we consider that the portion of the charge now under consideration was made supplementary to a presentation of one phase of the plaintiff’s contention as requested by plaintiff’s counsel, expressly to present defendant’s claim of the right to reject the goods on account of defect in quantity, and for the purpose of preventing any limitation or restriction of the defendant’s right to inspect the goods and ascertain whether they corresponded in quantity as well as quality with those purchased hy the defendant, and further discover from the record that the jury had been fully and, we think, 'correctly instructed as to the law applicable to the defendant’s plea of the statute of frauds, we think it is quite clear that the intelligence of 'the jury could safely be trusted to remember that the defendant-had two pleas, and to recall and apply the instructions already given hy the court, on the subject of the statute of frauds, to the evidence applicable to the defense based on §2693 of the Civil Code.

(b) The language of the instruction in question does not “make the legal right of the defendant to refuse acceptance of the goods dependent upon the terms of the oral contract as found by the jury,’’ as insisted by plaintiff in error; because, as stated above, the court is, at j:his point, onlj- presenting the law applicable to one issue in the case, to wit, whether there was or was not a sale of the goods as insisted by the plaintiff. But there is nowhere any intimation of opinion upon the facts by the court. This ground.of the exception is destroyed when the charge to which exception is taken is Tead.

(c) The instruction now under review may be subject to verbal criticism. The trial judge was perhaps too' complaisant in his language in referring to the sharp conflict between the parties. He was perhaps too much imbued with the spirit which it is the duty of the jury to exercise in case of conflict in the evidence,— that of harmonizing conflicting testimony so as to make all-the wetnesses speak the truth. No exception is taken to this. But if instead of saying, “if you find that the plaintiff is mistaken about his right to deliver,” etc., and that “the defendant is right in insisting that,” etc., the judge had substituted more vigorous and explicit language, so as to have charged the jury that if they found from the evidence that the plaintiff was not to deliver all the goods of this kind that he had, and if they believed that the defendant bought only 75 cans (or whatever they might find to be the number), then the defendant would have a right to object to the quantity as well as the quality, if it did so at the proper time, the only possible objection would have been removed. The jury might possibly have been led, by the language used, to suppose that they could settle the rights of the parties according to their opinion of right, instead of by the testimony as they found it to be true; but no exception is based upon that ground. The exception is taken to the words “this kind,” in the charge; it being insisted that the words “all the goods of this kind” furnish no indication as to whether the court meant' table peaches, pie peaches, or tomatoes. We can not approve of this exception; because it appears, in the evidence for the plaintiff, that he sold to the defendant company all the canned goods he had, and that he declined to sell part of them either to Strickland or to the defendant, and it further appears that these canned goods embraced only pie peaches, table peaches, and tomatoes, iso other goods are hinted at in the testimony, except canned goods; and if he sold all he had of “this kind,” it is undisputed that he must have sold, not only “table peaches” and “pie peaches,” but “tomatoes” as well; and the exception is without merit.

We are satisfied, at the end of a most thorough and painstaking investigation of the merits of every assignment of error, and of every argument in its support, that our respect for the profound legal ability of the learned counsel for plaintiff in error has caused us to search more diligently (if it be possible) than usual for every error pointed out in the record and brief, and to unduly lengthen our discussion of the points involved. After all, we find no error which requires the grant of a new trial. After all, in a fair trial (but with conflicts irreconcilable in the evidence), the jury preferred to base its verdict on the testimony for the plaintiff, instead of on that in behalf of the defendant.

Judgment affirmed.


author: Powell, J.

text:
    487.
    TODD v. GERMAN AMERICAN INSURANCE COMPANY OF NEW YORK.
    1. A completed contract of insurance exists when the minds of the insurer and of the person to be insured meet upon the essential elements, to wit: the subject-matter to which the policy should attach; the risk insured against; the duration of the risk; the amount of the indemnity; the premium to be paid; subject to the limitation that by statute in this State the policy must be written, though not necessarily delivered. All these essentials need not, however, be expressly negotiated upon, but may be understood from custom, course of dealing, or other circumstances from which assent to them may fairly be implied.
    2. It is error to nonsuit the plaintiff in an action upon a fire-insurance policy, on the ground that no completed contract of insurance is shown, where it appears that the plaintiff directed an insurance agency, in which the defendant company as well as other insurers was represented, to carry for him, on the property subsequently burned, a certain amount of insurance; that policies to the amount specified were written in different companies, chosen by the agency; that, upon one of these companies becoming bankrupt, the agency replaced the poi’tion of insurance which was carried by that company, by writing a policy of similar amount in the defendant company; notwithstanding it further appears, that the plaintiff did not know of the substitution of policies until after the fire occurred, and although the new policy was never actually delivered to him.
    (а) The adjudication that a fire-insurance company is insolvent ipso facto cancels all existing policies upon which no loss has previously occurred.
    (б) Erom a general instruction by a customer to an insurance agency, \ that it shall keep certain specified property of his insured in a designated amount, his assent may be implied so as to give mutuality to a contract of insurance, in usual form, and upon the usual premium, written by that agency to replace a policy which has become cancelled by the insolvency of the company originally insuring.
    3. If one, though not duly authorized, assumes to act as agent for another, and in the name of the latter procures a fire-insurance policy on his property which is subsequently burned, the person in whose name the policy has been issued may, upon discovery of the facts, ratify the assumed agency and assert liability against the insurer, to the same extent he could have done* if his authority had been originally conferred upon the person who undertook to act as his agent.

      (a) While, as a general rule, public policy forbids dual agencies, and therefore forbids that the same person shall act as the agent of both the insurer and the insured, still this general rule is subject to many just exceptions.
    (b) If an insurance company, knowing or from the surrounding circumstances being reasonably aware that its local agent is acting or assuming to act for the customers of his agency in applying for policies of insurance in their names on their property, and without depending on the skill, advice, or loyalty of the agent in the transaction, but acting upon its own judgment as to the desirability of the particular risks, authoi’izes the agent to write the policies, it will not be allowed to complain that such local.agent was also the agent of tlxe opposite parties to the contx-acts, but it will be held bound on the policies so written,
    (c) “The nxaxinx that ‘no man shall sex-ve two master's’ does xxot prevexxt the same person fx'om acting as agent, for certain purposes, of two or more parties to tlxe same transaction wlxeix their interests do not conflict, and where loyalty to the one is not a breach of duty to the other.”
    4. “It is relevant to put in evidexxee any circumstances which tend to make the propositions at issue either more or less probable.” I Whart. Evidence, §21.
    5. “It is well settled that insurers are bouixd to know the customs of a place where they transact business; aixd are assumed to have made their contracts ixx refereixee to such customs.”
    Action pn insurance policies, from city court of Macon — Judge Hodges. March 29, 1907.
    Argued October 15,
    Decided November 11, 1907.
    Todd sued the German American Insurance Company of New York on two policies of insurance for the sum of $2,000 each. The court, at the conclusion of the plaintiff’s testimony, awarded a nonsuit, and the plaintiff brings error. We shall report only so much of the evidence as is necessary to the understanding of the points decided. Todd purchased a stock of goods in Macon from, the Dixie Company. This company was carrying insurance in several agencies, among which was that of Turpin. Todd caused some of the policies which had been carried by the Dixie Company to be cancelled; others to be transferred. Of the insurance through the Turpin agency Todd requested that $6,000 be transferred and the remainder cancelled, Todd testified, “I told Mr. Turpin at the time to keep me insured for $6,000, and I might give him more later. . ’ . I thought Mr. Turpin had $6,000. I didn’t know what companies. I told the agent to keep me insured for so much, and I thought I had that much.” On June 6, 1906, the stock of goods was destroyed by fire. Todd had never examined any of the policies, and did not know the names of any of the companies until after the fire occurred. Upon examining the policies written through the Turpin agency, he found a $2,000 policy of°the Orient Insurance Company and two $2,000 policies of the Traders’ Insurance Company. Upon discovering that the Traders’ Insurance Company had failed, he went to Turpin and inquired of him whether these two policies had been rewritten. Turpin then told him that he had rewritten these two policies in the German American Insurance Company and that he bad the German American policies in his vault. Todd inquired if he owed any further premium; and Turpin replied that he did not, that he (Turpin) at his own expense had reinsured all his Traders’ business. Todd did not demand the policies at the-time; and subsequently, upon instructions from the general agent of the insurance, company, Turpin refused to deliver them. It further appeared, from the testimony, that prior to the fire the German. American policies had been sent to Todd’s store by a clerk in Turpin’s office, for delivery, but that the clerk, finding Todd absent, had brought the policies back' with him. After the fire, tire German American Insurance Company denied all liability on the policies. From the evidence it appeared that Turpin’s authority fo rewrite his Traders’ business in the German American Company arose in the following manner. Turpin’s agency, along with other insurance companies, represented the German American. On May 4, 1906, Turpin received from that company the following telegram: “Traders of Chicago in the hands of receivers.” Turpin then called up, by telephone, Reynolds, the German American Company’s general agent in Atlanta, and'asked him to re-insure the risks thus cancelled by the insolvency of the Traders Company, without expense to him or his customers. Reynolds refused to do this. Turpin said, “It will be a great loss to us.” Reynolds replied, “We can’t help that; you can protect the business.” Turpin said, “Yes, if we have got enough money.” The result of the conversation was that Reynolds authorized him to rewrite the Traders’ business in the German American Company, but with the understanding that he was to pay the premiums. On May 5, the home office of the German American Company sent a telegram, which they confirmed by letter, as follows: “General Agent Reynolds advises he has authorized you to rewrite in German American all Traders business, to become binding from to-day. We approve his action. Please forward immediately schedule of all lines in excess of $2,500 and let schedule of balance of business follow as soon as possible.” On May 7, Turpin received the following letter from.general agent Reynolds: “In re Traders’ business. Please do not fail to immediately comply with com-pan/s request to forward schedule of all lines in excess of $2,500 for the reason that they want to protect their excess liability, if any exists. . . It is my intention to visit Macon again in the next day or two, when I will be able to go over the Traders’ business with you, and, if there is anything we don’t want, cut it out.” Turpin reported to the German American Company the premiums on the Traders’ business in his May account, and in this report the premium on the Todd policies was included. On July 6, a month later than the fire, Turpin received from the insurance company the following letter: “The purpose of this letter is to advise you that we have eliminated from your May account the premiums on cancelled policies No. 5462 and No. 5493 [the Todd policies], reducing the balance to be remitted by you for that month to $1,192.” These policies in suit were duly written along with the policies on all the other Traders’ business which Turpin rewrote in the German American Company, and they were duly entered upon the policy register of that company prior to the date of the fire. Beynolds, the general agent, looked over the policy register at the time he came to Macon pursuant to the appointment made in his letter above quoted, and these Todd policies were registered there at that time. By certified transcript from the records of the Circuit Court of Cook County, Illinois, and of the United States Circuit Court for the Northern District of Georgia, it was shown that the Traders’ Insurance Company was judicially declared insolvent on May 5, 1906. There was other testimony, but a consideration of it is unnecessary for the determination of the propriety of a nonsuit.
    In addition to excepting to the nonsuit, the plaintiff in error further complains that the court erred in excluding testimony going to show that Turpin rewrote all his Traders’ business in the German American Company, that as to all the other policies so rewritten that company had accepted the risk, although at the time of Todd’s fire nearly all of these policies were in Turpin’s possession, and that the company accepted the premiums on all these policies from Turpin; 'also that these other policies, as well as Todd’s, were duly entered upon the German American register in Turpin’s office.
    The further exception is made that the court refused to allow the plaintiff to prove that it was a custom of long standing in Turpin’s agency to rewrite policies for customers as they expired, without previous instructions, and to. hold these policies for the convenience of customers, and to pay the premiums to the insurance companies for customers, whether they had been collected from the customers at the usual time for remittance or not; also, to prove that this custom existed generally in all insurance agencies in the city of Macon.

      Lane & Park, for plaintiff.

      Spencer R. Atkinson, for defendant.
   Powell, J.

(After stating the facts.)

It may be said generally that to„ constitute a completed contract of insurance, the minds of the parties should meet and agree upon five things: (1) the subject-matter to which the policy should attach; (3) the risk insured against; (3) the duration of the risk; (4) the amount of indemnity; (5) the premium to be paid. 1 Wood on Insurance, §5; Michigan Pipe Company v. Michigan Ins. Co., 92 Mich. 482, 20 L. R. A. 277; May on Insurance, §43 et seq.; Joyce on Insurance, §43. “All the essentials need not, however, be expressly negotiated upon, since they may be understood, as where the terms of the usual policy are presumed to have been intended; or where the usual rate of premium is presumed to have been meant; or in case the duration of the risk is understood to be the same as in a former policy; or where by custom and usage a certain course of dealing has been established.” Joyce on Insurance, §46; Wynn v. Niagara Insurance Co., 91 N. Y. 186; Audubon v. Insurance Co., 27 N. Y. 222; Home Ins. Co. v. Adler, 71 Ala. 516. In this State, by the Civil Code, §2089, “Such contract, to be binding, must be in writing; but delivery is not necessary if, in other respects, the contract is consummated.” New York Life Ins. Co. v. Babcock, 104 Ga. 67; Southern Ins. Co. v. Kempton, 56 Ga. 339. Although a policy of insurance has been written, the insurer may defend against an action thereon, provided it is made to appear that the minds of the parties have never met as to the essential elements. On the other hand, a plaintiff in an action against an insurer may recover upon a policy written, but not delivered, if it appears that the policy was executed by the insurer in response to an offer on the former’s part to take such insurance; which offer may be direct, immediate, and express, or may be implied from general language, surrounding circumstances, or a previous course of dealing. This offer need not be made personally, but may be made by an agent. The consideration of the contract may consist either of the payment of the premium by the insured or by another, or of a promise, express or implied, to pay it; which promise likewise need not be the personal promise of the insured, but may be the promise of any other person, acceptable to the insurer. • These generalizations are not only deducible from those recognized rules of law which govern nearly all contracts, but are also sustained by the practically unbroken current of authority in England and America. See, in addition to the authorities cited above, Fireman’s Ins. Co. v. Pekor, 106 Ga. 1; Mechanics Ins. Co. v. Mutual Assn., 98 Ga. 266; Lebanon Ins. Co. v. Hoover, 113 Pa. St. 591, 57 Am. Rep. 511, and notes. We have thus outlined these general principles prefatory to the discussion of the particular phases presented by the case at bar, with the intention of using them as postulates.

The trial court granted a nonsuit against the plaintiff; the question therefore presented is whether there is any view of the evidence under which he was entitled to have his ease submitted to the jury. After a review of the facts set out in the record, we are of the opinion that.there are at least two theories on which a verdict in his favor could have been sustained. First, we think that, under Todd’s testimony that he had directed Turpin’s agency to carry $6,000 of insurance on his stock of goods, the jury could have found that this request or direction amounted to a standing offer on his part to the insurance companies represented in that agency, to take from them to that amount, according to a distribution among them to be made in Turpin’s discretion, insurance policies in usual form at the. usual rate of premium, on the stock of goods in question. This offer to take would not alone make a contract; but the insurance company’s issuance of the policy in response thereto would complete it; for, in this view, it is easy to see that the minds of the parties would meet upon the necessary elements of the contract, namely, that the subject-matter should be the stock of goods in question; the risk insured against, fire; the duration of the.risk, the uniform expiration'of the policies; the amount of the indemnity, that portion of the $6,000 that Turpin should write in each company; the premium, the usual and customary rate. In those cases where the customer of an insurance agency, by leaving a standing order for so much insurance, or for certain lines (to quote a phrase from the parlance of the insurance world), or, by reason of allowing that agency, from year to year, to renew certain policies, gives warrant to the inference that he desires a uniform amount of insurance on a certain risk kept in force, and, in response to this implicit offer to take such insurance policy, the insurer writes one in exact accordance with-what the circumstances imply the nature of it should be, it violates neither law nor common sense to allow the jury to find that a contract exists. It is true that under this course-of dealing the person taking the insurance may not know what particular insurer stands as the other contracting party, as in this case Todd did not know the names of the insurance companies in which his policies were written. But this is nothing new to the law of contracts. As is said in 9 Cyc. 372, “It is not necessary, however, that both parties [to a contract] shall be ascertained or in existence at the time the offer is made, if the offer is accepted by one who is within its terms.” A familiar example is exhibited in cases of offers of reward. This court also noted an example in the case of Anderson v. State, 2 Ga. App. 1, 58 S. E. 412. In Michigan Pipe Co. v. Michigan Fire Ins. Co., 92 Mich. 482, 20 L. R. A. 277, the same contention was made as is made in this case, that the person claiming the insurance had not effected it, because he had not made his application to any particular company but had merely asked an insurance agency to write him so much. The court there says: “An application to an insurance agent representing several companies, for a certain amount of insurance on specified property, the agent to select the companies and distribute the risk, and his agreement so to do and give the insurance, constitute a valid contract of insurance with each company as soon as its policy is signed, although the policies are not delivered until after the property is destroyed by fire; since, in distributing the risk, the agent acts for the assured. That the rate of premium has not been paid or fixed will not prevent the commencement of a valid contract of • insurance, where there is a generally understood rate on that class of risks and the usual course of business between the parties has been for the agent to collect the premiums at his convenience after the issuance of the policies.” Further in the majority opinion the court, in referring to the request made by tbe plaintiff to Schmeck, the manager of the insurance office, to write him so much insurance, without designating the companies, says: “Indeed, in the ordinary course of business this very service might well be contemplated and expected by both parties. Schmeck having been directed to select the insurers and distribute the risk, both parties were bound by that selection and distribution when made. Both parties contemplated 'several contracts, and both were bound as the several contracts were executed. Neither defendant nor any of the other insurers were bound until that selection and distribution were made. Neither had agreed to take all or any specific portion of the amount. Defendant received no proposition to issue a policy for the whole amount. It received an application for the exact amount for which the policy executed by it was issued. The illustration [proposed by Grant, X, dissenting] as to the 1,000,000 feet of lumber is not an apt one. If A. directs B. to purchase 15,000,000 feet of lumber, knowing that it must be purchased in 15 different parcels and of as many different persons, and B. enters into 14 different separate contracts with as many persons.on behalf of A., for 14,000,000 feet, it is evident that neither of the 14 persons could repudiate the contract simply because B. had not contracted with still another person for an additional 1,000,000 feet, nor could A. repudiate the contract because his agent had not purchased the additional 1,000,000 feet. To the extent that B. dealt with each, his authority was ample, and bound his principal, and neither of the parties with whom B. contracted were concerned in his favor to make further- contracts. The insurers in the present ease were in no different position than if the lumber had been insured for the entire amount, and one of the policies had been cancelled; and it is not claimed that the amount of the additional insurance was represented as greater than it actually was. The name of the company, the location and amount of the risk, in each case, had been committed to Schmeck. The rate of premium not having been paid or fixed by the parties, plaintiff became liable to pay the usual or going rate. ' The policies contained no promises that they- should not become operative until the premiums were paid. Schmeck had written other policies for the same parties, and had afterwards, in the usual course, collected his premiums, and no demand was made for the premiums at the time that the insurance was applied for. In determining such, matters, consideration must be had for the manner in which the business had been usually carried on. To lay down .the rule that in all cases the premiums must expressly be agreed upon and paid, or credit expressly given, would be contrary to the general understanding among business men, and contrary to prevailing methods.” In the footnote to the case from which these quotations are taken, in 20 L. R. A. 277, are cited many cases sustaining in principle the proposition asserted.

It is to draw no strained inference to say that Todd’s expression to Turpin of a desire that his agency should carry $6,000 of his insurance was authority to Turpin, in the event any portion of the insurance originally written should become cancelled by intervening events, to replace it with a policy in some other company represented in that agency. In accordance with Todd’s direction, Turpin was carrying in his agency the $6,000 of insurance desired; the Traders’ Insurance Company became bankrupt, and therefrom followed the legal result that the two $2,000 policies which Turpin had written for him in that company were ipso facto cancelled (see 4 Joyce, Ins. §3591; Boston R. Co. v. Mercantile Trust Co., 82 Md. 535, 38 L. R. A. 97; Doane v. Millville Ins. Co., 43 N. J. Eq. 522). Under these circumstances, may not the jury imply from Todd’s previous directions, from the transaction as it followed, from the very relationships created, an assent on Todd’s part to a new policy in lieu of the old one? If his assent is supplied, the contract is complete, for the insurance company expressed its assent by writing the policy. In determining whether Todd’s assent is to be inferred or not, the jury would be authorized to take into consideration not merely his exact words, but also all the surrounding circumstances, and to apply their common knowledge as intelligent men as to what a customer means when he asks an insurance office to carry so much insurance for him.

This view of the' case is tenable without asserting that Turpin in any wise acted as agent for Todd in the procurement of the insurance. At first blush it might seem that in choosing, from among all his companies, the particular companies to which this business should be given, Turpin acted as Todd’s agent; but there is no logical necessity for this conclusion. If I ask the liverynián to send me a carriage, I do not constitute him my agent to pick out a particular carriage from among the many he owns; the choice as to which one he shall send, when I do not specify, is but a part of his own business. If a retail grocer asks a commission merchant, who represents several producers having cabbages for sale, to send him a shipment of cabbages, the commission merchant does not act as agent for the grocer when he decides to fill the order through his principal A., rather than through his principal B. We have adverted to this proposition because the defendant in error has stressed the argument that Turpin could not be the agent of Todd to procure the insurance and of the company to write it; and we have endeavored to show that in the transaction as thus viewed, no dual agency exists; that Todd in asking Turpin to carry the line of insurance, although he did not designate the companies, was dealing with him strictly as the agent of the opposite party.

We shall now take up the other view of the evidence upon which recovery could have been sustained; and this view does conceive of Turpin’s acting as agent for Todd as well as for the company. Let us first show that if Turpin- (the legality of a dual agency for the moment being pretermitted), assuming to act for Todd, but without any real authority to bind him, procured from the insurance company a policy of insurance in Todd’s favor, and paid the premium, or by an arrangement with the company substituted his promise to pay for actual payment, Todd could, after the fire, upon discovery of the fact that Turpin had assumed to act for him, ratify the contract and hold the company ujion it. “The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him, or subsequently ratifies the acts of another in his behalf.” Civil Code, §2997. “By the ratification of an unauthorized act, the relation of principal and agent, with all the rights and duties thereto, is as fully established as if the authority had been conferred originally; the ratification relates back to the time of performance of the act.” 1 Am. & Eng. Enc. Law (2d ed.), 1213; Civil Code, § 3019; Atlanta Buggy Co. v. Hess Spring Co., 124 Ga. 342. “As, from what has already been said, the principal thus acquires a right to elect whether he will adopt the unauthorized act or not, it must be admitted, that the parties do not generally stand upon equal terms; since the principal may always elect to ratify the act, if it is for his benefit, and to disavow it, if it is to his injury. But this consequence has never been allowed to overcome the force of the general doctrine. Thus, for example, where an unauthorized agent procured an insurance to be made upon a certain ship for the benefit of the owner thereof; and the ship was lost during the voyage; and long after the loss the owner ratified the insurance, and a suit was brought against the underwriters, it was held to be no objection to the recovery, that the ratification was not until long after the loss, and that the owner would not have been bound to pay the premium, if the ship had safely arrived. For the agent had still a right to effect the insurance, and to take the chance of its being adopted; and he could not have recovered back the premium paid by him to the underwriters, upon the ground that he had no authority, and that, therefore, there was no interest insured; because the underwriters would have borne the risk, until there had been a disavowal by the principal.” Story on Agency (8th ed.), § 248. See also, to the same effect, 3 Kent’s Com. *260, 261; Hagedorn v. Oliverson, 2 Maule & Selwyn, 485; Kouth v. Thompson, 3 East, 274 (new ed. 144); 1 Joyce on Insurance, § 642. 1 Clark & Skyles on Agency, § 112, states the same doctrine, but takes care to confine its application to cases where a sufficient consideration has been paid by the agent to the opposite party to the contract; but in this case this is an immaterial limitation, because the insurance company accepted Turpin’s promise to pay the premium, as a sufficient consideration for the policy. So that leaving out of consideration the lawfulness of Turpin’s acting as agent of both parties, it will be seen that if he, assuming to act for Todd, procured a contract of insurance for him, the latter, although ignorant of the existence of the policy until after the fire, might then ratify the former’s act and sue upon the policy.

The defendant in error resists the proposition just announced, by saying that if Turpin, acting as Todd’s agent by his authority, or assuming .to act in his behalf yithout his authority, procured the insurance from himself as agent for the insurance company, the policy is void; a dual agency being contrary to public policy. It is ruled in Ramspeck v. Pattillo, 104 Ga. 772, and in Phœnix Insurance Co. v. Hamilton, 110 Ga. 14, that “An agent of a fire-insurance company, authorized to contract for insurance in its behalf, can not, without the company’s consent, become in his individual character the agent of a property-owner who desires -to obtain insurance in that company, . . for the reason that an agreement to act as agent for both parties would be an undertaking to perform inconsistent duties, and a mutual agency of this kind requires the consent of both parties.” In the recent well-considered case of Arispe Mercantile Co. v. Capital Ins. Co., decided by the Supreme Court of Iowa on February 9, of the present year (36 Insurance Law Journal, 513), it is held, “An agent of a fire-insurance company who is an incorporator of a mercantile company can not,"acting as such agent, issue a valid policy to the mercantile company, though acting in good faith, where the insurer is ignorant of his relations to such company, on the principle that he can not act as agent in transacting business for his own benefit.” By the very exceptions borne on the face of the rule as stated in these decisions, the present ease is distinguished from those cited. All duality of agency is not forbidden. If the principal who seeks to repudiate knows that his agent is also acting for the other party, or if he authorizes a course of dealings wherein, from the very nature of the agency, the agent is expected to act also for the other party, the principal can not complain. Another exception to the doctrine generally forbidding dual agencies is that the agent may represent both parties, provided that the acts in which he is to represent the one in no wise conflict with the full exercise of his duty to the other. An agent may perform mere ministerial acts, involving no discretion, for one of the parties to the contract, though he is agent for the other party. He is forbidden to act for both only when there is opportunity that the skill and judgment which he should exercise for the one may conflict with the skill and judgment he should exercise for the other. “It is held that the rule that an agent can not act for both parties doer; not preclude an agent from acting for both parties where he acts in certain matters for one party, and then in different transactions for the other party, even though the parties are insurer and insured, and the acts are done in relation to the insurance; nor does the rule preclude an agent from acting for two principals in their mutual transactions.” 1 Joyce on Insurance, § 663, citing Fitzsimmons v. Express Co., 40 Ga. 330; 2 May on Insurance (4th ed.), § 500; Red Cypress Lumber Co. v. Perry, 118 Ga. 876; Insurance Co. v. Wilkinson, 13 Wall. 222; Michigan Pipe Co. v. Michigan Ins. Co., 92 Mich. 482, 20 L. R. A. 277; Petersburg Ins. Co. v. Manhattan Ins. Co., 66 Ga. 446; Clay v. Phœnix Ins. Co., 97 Ga. 44 (2), 53; Clark & Skyles on Agency, §§ 39, 414. “The maxim that ‘no man shall serve two masters’ does not prevent the same person from acting as agent, for certain purposes, of two or more parties to the same transaction when their interests do not conflict and when loyalty to the one is not a breach of duty to the other.” Northup v. Germania Ins. Co., 48 Wis. 420.

Now it will be noted in the present case that the defendant company did not rely upon Turpin’s judgment, skill, or loyalty as its agent in' the writing of the policies sued on. Turpin was not called upon to do more than the ministerial act of writing out the policies; for the company, acting upon its own judgment, agreed to take over all the cancelled Traders Insurance Company risks in bulk; and as further evidence of the fact that it was not relying upon Turpin’s 'judgment as to the desirability of particular risks, it gave him instruction to write “all Traders’ business, to become binding to-day,” and also notified him that the general agent would come in a few days and go over the risks, and said, in that connection, “if there is anything we don’t want, will cut it out.” The controlling elements which rendered the dual agency in the case of Ramspeck v. Pattillo, 104 Ga. 772, and Phœnix Insurance Co. v. Hamilton, 110 Ga. 14, obnoxious to public policy, were entirely absent here. In the case at bar, the agent’s duties were merely ministerial, as they were in the case of Petersburg Ins. Co. v. Manhattan Ins. Co., 66 Ga. 446 (7). Nor can it be contended with any countenance whatever that the insurance company did not know that Turpin was assuming to act in behalf of all such of his customers as formerly had Traders’ policies, in obtaining new insurance for them. From the telephone message between Turpin and the defendants’s general agent, from the letters subsequently written by the home office, and from the fact that the general agent afterwards came to Turpin’s office, checked ¿he policy register, and saw the way the business liad been,written, the' conclusion is irresistible that the company knew that Turpin, out of a desire to maintain the good name of his insurance office and to avoid a loss of customers by reason of the failure of,one of his companies, was, for his own benefit as well as for the benefit of his customers, endeavoring to procure for them, at his own expense, new insurance on the caneelléd risks. The defendant company necessarily knew, from the circumstances surrounding the transaction, that while Turpin was their local agent, he was, in this instance; acting not in its interest alone, but in his own interest, and also in the interest of all of his customers who.had held Traders’ policies. There is always some slight conflict between the interest of the local agent, whose commissions depend upon the volume of the business he writes, and that of the company he represents; for there is a natural temptation that he should increase the volume by taking risks not wholly desirable; and on this occasion, the agent’s adverse interest was measurably greater; but, knowing all this, the company expressly authorized him to transfer in bulk to them all these risks, and accepted from him a debit memorandum for the premiums. If the defendant company did not expect to be liable to all the holders of the Traders’ policies, it should not have telegraphed Turpin to rewrite all those policies in bulk, and should not have accepted his promise to pay the premiums thereon. Insurance companies should not reach out for premiums in bulk without expecting to incur a corresponding liability for losses. Turpin, by thus securing the interests of his customers, did no actual or constructive wrong to his principal, the defendant company. In probable anticipation of converting to itself the Traders’ business, it sent Turpin a telegram telling him of that company’s insolvency; in response, he confronted it with his needs in the situation; it, with full knowledge, offered to meet that need, not gratuitously as Turpin at first desired, but in consideration of the usual premium. Test this transaction by considering whether Turpin therein incurred any civil liability to his principal; for if an agent unlawfully and without his principal’s consent becomes a dual agent in violation of the loyalty due the first principal, he is civilly liable therefor. Could the defendant company successfully sue Turpin on account of this transaction P To ask the question is to answer it. The company’s instructions in the record would be a perfect defense. Therefore, while Turpin became the agent both of the insurer and of the insured, he was lawfully so; and the insurer will not be allowed to repudiate the contract made through him.

Our conclusion is that Todd would have been entitled to recover upon the theory that the policies sued on were issued in pursuance to his standing instruction to Turpin’s office; but our further conclusion is, that, irrespective of any previous request on his part for the insurance, he had the right, upon discovering that Turpin, with the consent of the insurance company, had assumed to xepresent him in obtaining the policies, to ratify Turpin’s act and hold the company liable for the loss.

The court erred in not allowing the plaintiff to prove that, pursuant to the authority given by the defendant, Turpin had rewritten all the Traders’ policies and had entered them upon the register of the defendant company. This circumstance, especially in connection with the fact that the general agent of the defendant came to Turpin’s office to inspect this business and made no ■objection, was relevant.

While it was not competent for the plaintiff to prove the custom of Turpin’s agency alone, of rewriting expired policies without explicit requests from customers and of paying the premiums, becoming personally responsible to the company for them, .and of holding the policies at his office for the convenience of those insured, unless knowledge of the custom was brought home -to the insurer in this case, yet it was competent for the plaintiff to show that there was a general custom of that kind prevailing in the city of Macon; and, as a part of the proof to that end, it might show that the custom existed in Turpin’s office, provided this was supplemented with proof, such as was tendered, showing that it likewise prevailed generally in other agencies. “It is well settled that insurers are bound to know the customs of a place where they transact business, and are assumed to have made their contracts in reference to such customs.” Joyce on Insurance, § 50; May on Insurance (4th ed.) § 582 and 23B; Political Code, § 1, par. 4; Civil Code, § 5206; Lebanon Insurance Co. v. Hoover, 113 Pa. St. 591, 57 Am. Rep. 511 and notes; Lauchheimer v. Jacobs, 126 Ga. 261, 265; Hardeman v. English, 79 Ga. 387; Clark & Skyles on the Law of Agency, § 69. Judgment reversed.