Brandon v. Pritchett , 1906 Ga. LEXIS 375 ( 1906 )

Cobb, P. J.

Brandon brought an action against Pritchett, praying for the specific performance of a contract for the sale of a described parcel of land. The judge directed a verdict for the defendant, and Brandon excepted. The case of the prevailing party, taken in its most favorable light, may be thus stated: Pritchett in a writing signed by him authorizéd Grier to sell a parcel of land at a stated sum, .the authority to sell to continue for three days only. Before any contract of sale was made by Grier, Pritchett revoked the authority. The revocation was by parol. After the revocation but within the three days, Grief made a contract with Brandon for the sale of the land, and signed in his individual name a memorandum reciting that he had sold the land to Brandon as the agent of Pritchett, which memorandum, so far as its contents were concerned, would be a sufficient compliance with the statute of frauds. Within the three days, and after the signing of this memorandum by Grier, Pritchett was approached by an attorney representing Brandon, and informed of the contract which Grier had made, and presented with a deed with the request that he sign it. At the time the deed was presented there was an offer to make a tender of the amount of the money specified in the memorandum signed by Grier, which was the same amount specified in the original paper conferring authority upon Grier to make the sale. Pritchett waived the tender of the money and agreed that the matter should stand as if a tender which was legally complete had been made. Pritchett declined to sign the deed at that time. On the next day, or the next day but one, the attorney for Brandon approached Pritchett and told him that he had a check for the amount of the purchase-money, and was ready to pay it over if he would sign the deed, and Pritchett said, “I have concluded that I will sign the deed. I will go to your office in the morning.” This statement by Pritchett that he would sign the deed on the following day was within the three-day limit fixed in the writing which -conferred, the authority to sell upon Grier. Pritchett thereafter refused to sign the deed, and has never signed it.

The general rule of the common law was that an agent might be appointed by parol. Judge Story said, in 1839, that it was absolutely indispensable to the exigencies of commercial business that the rule should be as stated, for otherwise the most ordinary transactions would be greatly embarrassed,, if not obstructed. Story on Agency (9th ed.), §47. If this was true at that day, how much more true is it at the present time. If no one could sign for another a check or promissory note, or bill of exchange, or accept the same or indorse such papers, or sell or buy goods, or write a letter, or procure a policy of insurance, unless authorized by a writing, the operations of the business world would be retarded at, every step. There were a few exceptions to this general rule. One-was, that where the act required a writing under seal, the authority to do the act must generally be conferred by an instrument under seal. But there are eyen exceptions to this exception. There was also another exception to the general rule, founded upon the strict notions of the old common law; and that was that an agent of a corporation must ordinarily receive his appointment to do any act for the corporation by an instrument under the common seal of the corporation. But this exception has been greatly relaxed in modern times. The statute of frauds requires certain contracts to-be in writing, but there is no provision in that statute requiring the authority of an agent to make the contract to he also in writing. The general rule in England as well as in America was'and is, that, although a contract for the sale of land must be in writing, an agent may be appointed by parol to make the contract, the general rule being that, unless the statute expressly require the authority to be in writing, an agent may be authorized by parol to make a contract for the sale of land. Mechem on Agency, § 89; Brownepn Statute of Frauds (5th ed.), § 370; Wood on Statute of Frauds, 778-786; 1 Reed on Statute of Frauds, § 377.

In some States statutes have been passed which require the authority of an agent to make a sale of land, or other contracts within the purview of the statute of frauds, to be in writing. In the absence of such a statute the common law prevails; and while the contract for the sale of land, to be enforceable, must be in writing, signed by the party to be charged, or by some one duly authorized by him, the authority of the agent to sign the writing may be created by parol. If one assumes to represent another when he has no authority, or, having a limited authority, exceeds its limits, when the person in whose behalf the act is done repudiates the act he is not bound. But if with full knowledge of all the circumstances he approves the act, he is bound just as if authority had originally been given to the person assuming to act as agent. It is, however, the general rule that the a,ct of ratification must be of' the same nature as that which would be required for conferring the authority in the first instance. If sealed authority was indispensable, sealed ratification must be shown. If written authority was required, written ratification must appear. Mechem on¡ Agency, § 136. If there is any law requiring the creation of the agency to be in writing, a parol ratification of the agency would not be sufficient. Mechem on Agency, § 144. In the present case the evidence authorized a finding that Pritchett had ratified in parol the unauthorized writing made by Grier to sell his land. Grier assumed to act as the agent for Pritchett, after his agency had been revoked. The writing therefore goes for nothing, unless there was a ratification. Whether Pritchett would be bound by the parol ratification depends upon whether there ig any statute in this State requiring the authority of an agent to make the memorandum required by the statute of frauds to be conferred in writing. If there is no such statute, the rule of the common law, which allowed the agent to be appointed by parol, is still the law of this State. There is no statute in this State changing the common-law rule. Smith v. Insurance Asso., 111 Ga. 737; Watson v. Brightwell, 60 Ga. 212. The code declares, “The act creating the agency must be executed with the same formality (and need have no more) as the law prescribes for the execution of the act for which the agency is created. A corporation may create an agent in its usual mode of transacting business, and without its corporate seal.” Civil Code, § 3002. This section did not have its origin in a statute of this State. It appears for the first time in the Code of 1863. It is to be construed as a codification of the existing law, unless there are words in the section which imperatively demand a construction which would change the rule in force at the time the code was adopted. Mitchell v. Ga. & Ala. Ry., 111 Ga. 760. There is no language in the section which can be properly construed to change the existing rule of law, except that contained in the last sentence in regard to the appointment of agents by corporations. The language of this sentence is so clear and unequivocal that there can be no doubt that it was intended that the common-law rule before mentioned, in reference to the appointment of agents by corporations, should no longer be of force in this State. The first paragraph of the section is a simple and concise statement of the rule of the common law in reference to the creation of agents; that is, that if the law requires an instrument to be under seal, the authority to execute the instrument must be made by an instrument under seal. If.the law requires, in the'pérformanee of an act, a writing attested by a witness or witnesses, then the authority to do the act must be conferred by a. writing executed with the same formality. The words in parenthesis, which in effect declare that the creation of an agency need be executed with no more formality than the act itself requires, ’ clearly indicate that the framer of this section had in mind,the common law when the section was penned. For there were writers upon the common law who had laid down the rule that an agent or attorney to do any act, no matter what it might be, must be authorized by an instrument under seal; that is, that the authority to act for another must be by an instrument under seal without reference to the formality required for the act itself. Judge Story calls attention to the utterances of these writers, and pronounces the rule thus stated to be manifestly incorrect. Story on Agency, § 46. The framer of this section of the code clearly intended, by the use of the words in the parenthesis, to indicate that it was his purpose to codify the true common-law rule, and to repudiate in express terms the rule which Judge Story refers to as having been laid down by common-law writers, and which he pronounces incorrect. If the section of the code be taken in its literalism, without reference to its history, it may be that a construction could be placed upon it which requires an agency to do a written act to be in writing. But the sections of the code not having their origin in the statutes of this State, but simply coming into the law as part of a codification, can never be safely construed except in the light of their origin. We do not think that the section in question, properly construed, changes the common-law rule in reference to the creation of an agency to make a memorandum required by the statute of frauds. Such being the case, the ratification of an unauthorized writing which itself complies with the terms of the statute, is binding, although the ratification be by parol. The court erred in directing a verdict for the defendant.

Judgment reversed.

Fish, O. J., absent. Evans, J., concurs. Lumplcin and BecJc, JJ., concur dubitante.