Southern Trading Corp. v. Benchley Bros. , 34 Ga. App. 625 ( 1925 )

Bell, J.

(After stating the foregoing facts.) The petition set forth a cause of action and was therefore good as against the general demurrer. The meritorious'grounds of the special demurrer having been met by amendment, the court did not err in overruling all grounds thereof.

Besides insisting upon the usual general grounds of the motion for a new trial, the defendant assigns as error that the charge of the court, in dealing, with the contentions of the respective parties, overemphasized the contentions of the plaintiff and stated them more strongly than those of the defendant. Upon examination of the entire charge we are unable to find that any undue prominence was given to the contentions of the plaintiff, or that the charge could have prejudiced the jury in favor of either party’s contentions.

The second ground of the motion for a new trial is that the court erred in failing to instruct the jury with- reference to the burden of proof. “In the absence of a written request, it is not reversible error for the court to omit to instruct the jury as to the burden of proof in a civil case.” Wade v. Eason, 31 Ga. App. 256 (2) (120 S. E. 440).

The defendant further assigns as error the following portion of the court’s charge: “Where goods of certain quality are ordered on contract for future delivery and goods of an inferior quality are delivered the measure of damage is the difference between the market value of the goods delivered at the time and place of delivery and the value of goods of the character ordered at the same time and place. If you find that the relation of principal and agent existed, then you are instructed that if upon being notified by the agent that the goods were refused, that the goods were not up to the standard of the sample and the principal refused to instruct the agent as to what to do with the goods, and the agent had paid out its money for the goods and was unable to deliver the goods on account of the goods not being up to the contract, then the agent, in order to protect himself, would be authorized to sell the goods at the best price obtainable and make snch settlement and adjustment of the matter as they might be able to make, using good faith in protecting the rights of their principal, and the agent would be entitled to recover from the principal a sufficient amount to reimburse it for the expenditure made by it in adjusting the matter of its principal after the principal had declined to further participate in the matter and instruct the agent what to do in the premises.”

This extract from the charge is excepted to because the first sentence thereof, which, it is claimed, states the correct measure of damage, was nullified by the instructions that immediately followed, as to the damage which might be recovered if there existed between the parties the relation of principal and agent. It is alleged, in effect, that the latter instructions were unsound in law and unwarranted by the facts. If the transaction between the parties was one of purchase and sale, or if. the plaintiff was the defendant’s agent, without an interest, the attack upon the above-quoted charge would have been well founded. The case as laid by the plaintiff’s petition, however, was predicated upon the theory that the plaintiff’s relation to the defendant was one of agency coupled with an interest, and there was ample evidence to authorize the jury to sustain this theory. The first sentence in the above-quoted charge gave the jury the rule which would have been applicable as to the measure of damage, if they had found, in accordance with the defendant’s contention, that the plaintiff was a purchaser. The remainder was applicable to the plaintiff’s contention as expressed in'the petition and as supported by some of the evidence.

“Where a consignment of property is made to a factor for sale, and he makes advances thereon with the consent of or by the direction of his principal, an agency coupled with an interest arises.” “ Ordinarily an agent must be guided wholly by the wishes or directions expressed by his principal, but in cases of an agency coupled with an interest, unreasonable instructions, detrimental to the agent’s interests, may be disregarded.” Gordon v. Cobb, 4 Ga. App. 49 (1, 2) (60 S. E. 821).

If the plaintiff was an agent rather than a purchaser, it became an agent with an interest when it advanced the amount of the purchase-price of the goods sold and, under the principle enundated in tbe ease just dted (see also Civil Code (1910), § 3575; John Flannery Co. v. James, 13 Ga. App. 425 (3) (79 S. E. 912); McMekin v. Planters Warehouse Go., 32 Ga. App. 752), was authorized, where the defendant refused to give instructions as to their disposition, to sell the goods, in the exercise of a sound discretion, at such time and in such manner as the usage of trade and its general duty required, and in such ease the measure of damage to be recovered was the amount of the advances and necessary expenses, less the amount received from the sale, with interest.

The evidence having authorized the verdict found in the plaintiff’s favor, and no error of law having been committed during the trial, the court did not. err in denying defendant’s motion for a new trial.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.