Red Cypress Lumber Co. v. Perry , 118 Ga. 876 ( 1903 )

Lamar, J.

The- judge properly submitted to the jury the question as to whether the plaintiff was employed by the defendant to purchase the Beech Grove place from Mrs. Huntley. The evidence was conflicting, but the verdict of the jury must be taken as conclusive on that issue. It appeared that Perry had been first employed by Mrs. Huntley to sell, and represented both buyer and seller in the transaction; and the court charged that a double agency without the consent of hoth parties is contrary to public policy ; and that therefore the agent would not be entitled to recover commissions for the services, unless it appeared that each principal knew that he was acting for the other.

Without the consent of both principals an agent can not serve two masters. He can not assume a position which brings his interest in conflict with his duty to either or both of his employers. Where he acts only as a middleman without discretion, and merely brings the two parties together, and they personally agree upon the terms, the rulé applies, but in a modified form, inasmuch as an agent might be under the temptation not to report proposals to the first principal unless accompanied' by an offer from the second to pay additional commissions to bring the parties together. But, inasmuch as the reason for the rule is not so strong, there are decisions to the effect that where both the contracting parties know of the dual agency a mere middleman may recover from both, without showing that each knew that he was to receive commissions from the other. Rupp v. Sampson, 16 Gray, 398; Siegel v. Gould, 7 Lans. 177; Orton v. Schofield, 21 N. W. 261; Barry v. Schmidt, 15 N. W. 24; Jarvis v. Schaefer (N. Y), 11 N. E. 634; Rice v. Wood, 113 Mass. 113, s. c. 18 Am. Rep. 459. The company, however, insists that even if these authorities are to be fol-lowed, the charge was error, because, while it knew that Perry was representing Mrs. Huntley, there was no evidence that she knew he represented the purchaser. The answer nowhere set up the invalidity of the contract because of dual agency, but that issue seems to have been raised after the evidence had closed, and on a motion to direct a verdict for the defendant. Under the code the defendant should clearly, fully, and distinctly set forth his defense. Civil Code, § 5052. Here the defendant ought to have put the plaintiff on notice of the intended attack on the contract. Civil Code, § 5053. If it assumed the burden of proving the invalidity of the contract, it should have made out a complete, not a mere partial defense. The plaintiff claimed to be a middleman. Dual agency was not absolutely contrary to public policy, but only so if the principals did not know thereof. And as it required two elements to defeat the agent’s right to recover, both should have been proved by the party asserting the invalidity of the contract. “When a contract is valid in the absence or existence of certain facts, but otherwise void, it is, in the absence of evidence, presumed to be valid; and the burden of proving the absence or existence of such facts lies upon him who asserts its invalidity.” Greenhood on Pub. Pol. 118, Rule cxxx.

In Sanders v. Johnson, 29 Ga. 526, Johnson sued Sanders on a note executed on Sunday. The evidence was silent; as to whether the noté was given in the exercise of any “ worldly labor, business, or work of the ordinary callings ” of the parties, as contemplated by the act of 1762 (Cobb, 853). The defendant contended, after entering into an agreed statement of facts, that the note was void by reason of the provisions of the acts of 1762. The jury found for the plaintiff. The court said (p. 528): “ It does not appear from the evidence that the note was made by the parties to it in the exercise of ‘ worldly labor, business, or work, of their ordinary callings;’ and the onus was upon the defendant (the plaintiff in error) to show that it was. It is to be presumed that all persons are innocent until it is shown that they are guilty. It is to be presumed, therefore, that the making of the note was not in the exercise of the ordinary callings of the parties to the note, until the ’contrary is shown. . . The onus then, standing as it did, and the evidence being as it was, we think, with the court below, that the note was to be regarded as ‘ collectable. ’ ” See also Forysth Mfg. Co. v. Castlen, 112 Ga. 199; Civil Code, § 5160.

Besides, though meager, there was some evidence from which the jury might have inferred that Mrs. Huntley knew that the plaintiff represented the buyer. While the option stated that he was her agent, it was yet given to “ John O. Perry, agent, and to his assigns,” and there was an entry thereon that the option had been obtained for the benefit of the Bed Cypress .Lumber Company. Judgment affirmed.

All the Justices concur.