Williams & Brother v. King Hardware Co. , 25 Ga. App. 680 ( 1920 )

Jenkins, P. J.

1. “ Declarations of an alleged agent are not by themselves admissible to prove agency, but the fact of agency' may be established by proof of circumstances, apparent relations, and the conduct of the parties; and where the extraneous circumstances,! independently of and without regard to the declarations of the agent himself, clearly tend to establish the fact of his agency, his declarations, though inadmissible if standing alone, may, as a part of the res gestee of the transaction, be considered.” Sherrod v. Springfield Baptist Church, 21 Ga. App. 200 (2) (93 S. E. 1009); Abel v. Jarratt, 100 Ga. 732 (28 S. E. 453); Ham v. Brown, 2 Ga. App. 71 (58 S. E. 316).

2. The plaintiff company having admitted that it was in the habit of permitting its traveling salesmen to collect money due the company on its accounts, and the testimony of the defendant, unobjected to, showing that the person to whom the payment was made not only represented himself to be the agent of the plaintiff, but correctly read over to the defendant the various items with the price of each for which the money was due, the bona tides of the receipt tendered, despite the evidence of the' plaintiff tending to show its fraudulent character, was a question of fact for the jury, and the judge erred in excluding it from their consideration and directing a verdict for the plaintiff.

Judgment reversed.

Stephens and Smith, JJ., concur. Clay & Giles, for plaintiffs in error.