Hardin v. Atlanta Gas Light Co. , 71 Ga. App. 63 ( 1944 )

The verdict for the plaintiff was not supported by the evidence for the reason that it does not show that E. H. Reese had authority to execute the contract sued on as agent of the partnership. A witness for the gas company testified: "The position Mr. Reese held, as far as I know, was manager and in charge of Mr. Hardin's office, and in fact all the dealings I had in any shape or form were with Mr. Reese." The same witness also testified that all dealings he had through Mr. Reese with Mr. Hardin were "O. K." so far as he knew and that he acted under the impression that Reese was Hardin's agent, looking after the building and his business, and that his recollection was that all checks from the Hardin office were signed by Reese. The evidence likewise does not support the verdict on the theory that it was ratified by the partnership. There was no evidence that T. J. Hardin had notice that Reese executed the contract. It is elemental that neither member of the partnership can be said to have ratified the signature of Reese to the contract until he knew of the fact that Reese had purportedly signed as agent of the partnership. The evidence shows that the first notice H. H. Hardin had that Reese executed the contract was a few weeks before he was served with a copy of the suit. The petition shows that T. J. Hardinwas dead at that time, and in the absence of a provision to that effect in the articles of partnership, or in the will of the deceased partner, the surviving partner had no authority to bind a partnership which had been dissolved by the death of a partner by the making of a new contract or the ratification of an old one by which the partnership was not originally bound. See Maynard v. Maynard, 147 Ga. 178 (93 S.E. 289, L.R.A. 1918A, 81); Code, §§ 75-208, 75-209, 75-210; Griggs v. Swift, 82 Ga. 392 (9 S.E. 1062, 5 L.R.A. 405, 14 Am. St. R. 176); 40 Am.Jur. 326, § 285; id. 339, § 302. The court erred in admitting in evidence the contract sued on for the reasons stated above.

4. The court charged the jury as follows: "There is only one issue in the case, that is whether there was an obligation such as is depended upon signed by any one for the defendants T. J. H. H. Hardin in this case. That person is designated as a Mr. Reese. The plaintiff contends that Mr. Reese signed the contract, and contends that he did it as an agent for T. J. H. H. Hardin, and that the defendants, T. J. H. H. Hardin, received the goods that are described in the contract, and that they have never returned or offered to return those goods to the plaintiff, and have thus ratified the act of Mr. Reese as their agent. If you find that to be the truth of the case, then you would find in favor of the plaintiff." This charge was error for the reason that there is no evidence that during the lifetime of both the partners either one of them knew that Reese had signed the contract sued on as their agent and that they or either of them retained the fruits of the contract with that knowledge, and because the surviving partner could not ratify the contract after the death of a partner in the absence of such authority in the articles of partnership or the will of the deceased partner. See authorities cited above.

5. The court charged the jury as follows: "Now, if you believe that Mr. Reese acted as the agent of the defendant, and that he signed the contract which is sued on, the original of which has been introduced in evidence, and that Mr. H. H. Hardin ratified the act of Reese by accepting and retaining the goods in his possession without paying for them, you would be authorized to find a verdict for the plaintiff for the amount sued for." This charge was error for the reasons stated in the preceding paragraph.

6. The court charged the jury as follows: "If you believe that the goods specified in the petition were received by Mr. Hardin and never paid for, then, if you believe that Mr. Reese signed the contract sued on as agent for Mr. Hardin, that signing would become the act of Mr. Hardin himself, and you would be authorized to find for the plaintiff." This charge was error for the reason that there was no evidence to authorize a finding that Reese had authority to sign the contract as agent either for the partnership on for H. H. Hardin.