O.C.G.A. § 10-6-33 (2019)

Annotations

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION POWER COUPLED WITH AN INTEREST General Consideration Section not intended to be exhaustive. - This section, expressing but one exception to the general rule of revocability of an agency at will, was not intended to be exhaustive of the legal principles controlling revocation. Ray v. Hemphill, 97 Ga. 563, 25 S.E. 485, 1895 Ga. LEXIS 527 (1895); Wheeler v. Pan Am. Petro. Corp., 48 Ga. App. 378, 172 S.E. 826, 1934 Ga. App. LEXIS 80 (1934). Revocable at will of principal. - Generally, an agency is revocable at the will of the principal. Ray v. Hemphill, 97 Ga. 563, 25 S.E. 485, 1895 Ga. LEXIS 527 (1895); Wheeler v. Pan Am. Petro. Corp., 48 Ga. App. 378, 172 S.E. 826, 1934 Ga. App. LEXIS 80 (1934); Holland v. King, 72 Ga. App. 179, 33 S.E.2d 275, 1945 Ga. App. LEXIS 542 (1945). If books were merely entrusted to a party as agent of a corporation for the purpose of selling the books with title remaining in the corporation, the corporation was empowered to revoke the agency at will and to take possession of the books by any lawful means. Parks v. Atlanta News Agency, Inc., 115 Ga. App. 842, 156 S.E.2d 137, 1967 Ga. App. LEXIS 1276 (1967). Death. - Agency is ipso facto revoked by death. Ray v. Hemphill, 97 Ga. 563, 25 S.E. 485, 1895 Ga. LEXIS 527 (1895). Agent is not barred from having interest. - That an agent was not prohibited from having an interest was evident from former Code 1933, §§ 4-202 and 4-214. Pendley v. Jessee, 134 Ga. App.

138, 213 S.E.2d 496, 1975 Ga. App. LEXIS 1934 (1975). Paying consideration for power is not sufficient. - Power will not survive merely because the donee may have paid a valuable consideration for the power. Turman v. Winecoff, 138 Ga. 726, 75 S.E. 1131, 1912 Ga. LEXIS 670 (1912). Voluntary agency to settle lawsuit held revocable. - If one, without consideration, entrusted an agent with a sum of money to settle a lawsuit between two others, one has the power of revocation until the settlement is complete, especially if the contract is in writing and it is therein expressly agreed that the terms of the settlement are to be satisfactory to the person in every way, and if not, then the money is to be restored to the person. Phillips v. Howell, 60 Ga. 411, 1878 Ga. LEXIS 486 (1878). Attorney-client relationship does not come under this section; it is an erroneous legal theory to argue that retention of an attorney is nothing more than creation of an agency, so that under this section death of either the principal or agent revokes the power. Continental Ins. Co. v. Weekes, 140 Ga. App. 791, 232 S.E.2d 80, 1976 Ga. App. LEXIS 1634 (1976) (attorney-client relationship held not involved). Power of sale in mortgage held revoked by mortgagor’s death. - Power of sale given by mortgage under this section is revoked by the mortgagor’s death before the note falls due. Lathrop & Co. v. Brown, 65 Ga. 312, 1880 Ga. LEXIS

185 (1880); Wilkins v. McGehee, 86 Ga. 764, 13 S.E. 84, 1891 Ga. LEXIS 60 (1891). Power of sale in mortgage held irrevocable during mortgagor’s lifetime. - Power of sale, such as one contained in a mortgage, is irrevocable during the lifetime of the principal when it is given for a valuable consideration, and forms a part of a contract made as security for a debt, and is conferred for the purpose of effectuating the security, even though not coupled with an interest in the thing itself, and this is undoubtedly so if there is an express stipulation that the power shall be irrevocable. Ray v. Hemphill, 97 Ga. 563, 25 S.E. 485, 1895 Ga. LEXIS 527 (1895). Agency to sell land held not revocable until after reasonable time. - If agents are employed to sell land for a specified commission to be paid when a sale is made and they expend time and effort in endeavoring to effect a sale, the owner cannot, without lawful cause, revoke the contract of agency at one’s mere option and before the expiration of a reasonable time for performance. If no time limit is fixed in the contract for the contract’s performance, the agents are entitled to a reasonable time. Holland v. King, 72 Ga. App. 179, 33 S.E.2d 275, 1945 Ga. App. LEXIS 542 (1945). Consummation of sale by owner would not relieve the owner of liability for commission. - Fact that a sale was finally consummated by the owner to a purchaser procured by the agents would not relieve the owner of the owner’s liability for the commission. Holland v. King, 72 Ga. App. 179, 33 S.E.2d 275, 1945 Ga. App. LEXIS 542 (1945). No power to collect additional compensation shown. - In a breach of contract and fraud action for unpaid commissions brought by an independent sales representative against a manufacturer, the trial court properly determined that the independent sales representative could not recover continuing commissions after the agreement expired based on the theory of irrevocable agency as the agreement expressly stated that no additional

compensation would be paid for equipment leases. Irvin Int’l, Inc. v. Riverwood Int’l Corp., 299 Ga. App. 633, 683 S.E.2d 158, 2009 Ga. App. LEXIS 921 (2009). Agency to collect note owned in part by agent held not revoked by payee’s death. - If one lends money for oneself and as agent for others and takes a note so payable, the right and duty of the payee to collect the note for the principals for whom money was loaned is an agency coupled with an interest which is not terminated by the death of the payee of the note; the executrix has the right to proceed to collect the note. Scott v. Cain, 77 Ga. App. 826, 50 S.E.2d 99, 1948 Ga. App. LEXIS 653 (1948). Termination by manufacturer of oral agreement for distributorship did not give rise to an action for wrongful termination, even though the distributorship was to be for an indefinite time. Loy’s Office Supplies, Inc. v. Steelcase, Inc., 174 Ga. App. 701, 331 S.E.2d 75, 1985 Ga. App. LEXIS 1935 (1985). Powers of remainderman to manage property until life tenant dies held irrevocable. - When A executed a deed to B, C, and D, for $1.00 and other valuable considerations, providing that the property was conveyed in trust and empowering the grantees to pay insurance, taxes, and maturing loans on the property conveyed, to collect the rents, to sell and reinvest, and to pay the net income to the grantor for life, and providing that at A’s death title should vest absolutely in B, C, and D, such deed conveyed the property to grantees subject to a life estate in the grantor, and the powers conferred by the deed were irrevocable. Finn v. Dobbs, 188 Ga. 602, 4 S.E.2d 655, 1939 Ga. LEXIS 610 (1939). Notice to remit proceeds revokes agency of bank to place proceeds to depositor’s credit. - Notice by a depositor given to a bank before the bank has collected checks which have been deposited with the bank as agent to collect, notifying the bank that the proceeds of the checks after being collected are not to be deposited to the depositor’s credit, but are to be remitted by the bank to the depositor, is notice to

General Consideration (Cont’d) the bank of a revocation by the depositor of the bank’s agency to place the proceeds derived from the collection of the checks to the depositor’s credit in the bank. Macon Grocery Co. v. Citizens’ Bank, 42 Ga. App. 74, 155 S.E. 57, 1930 Ga. App. LEXIS 236 (1930). Filing suit to cancel power of attorney and deeds made thereunder revokes agency. - Power of attorney not coupled with an interest is revocable at will; and the mere filing of suit to cancel a power of attorney and two deeds made by the attorney in fact amounts to a revocation thereof with respect to any future action thereunder by the attorney in fact. Thompson v. Thompson, 190 Ga. 264, 9 S.E.2d 80, 1940 Ga. LEXIS 445 (1940). Right to discharge at will shows employer-employee relationship. - Charge of the court to the jury to the effect that, if a used car lot owner retained the right to direct or control the time or manner of executing the work of a salesperson and had the right to discharge the salesperson and to terminate at any time the arrangement between them, the relationship would be that of employer and employee or that of master and servant, but that, if the dealer did not have these rights, then the relationship between the dealer and the salesperson would be another relationship, “such as the relationship of independent contractor and principal,” was an accurate statement of the law. Hamilton v. Pulaski County, 86 Ga. App. 705, 72 S.E.2d 487, 1952 Ga. App. LEXIS 1036 (1952). Power of attorney must be strictly construed and strictly pursued; the act done must be legally identical with that authorized to be done. United States v. Ferguson, 409 F. Supp. 393, 1975 U.S. Dist. LEXIS 11415 (S.D. Ga. 1975), aff’d, 529 F.2d 999, 1976 U.S. App. LEXIS 12012 (5th Cir. 1976). Action lies for wrongful revocation. - If the revocation of an agency is unreasonable and constitutes a breach of contract, whereby the agent sustains injury, the law affords the agent redress in an action for damages. Standard Oil Co. v.

Gilbert & Co., 84 Ga. 714, 11 S.E. 491, 1890 Ga. LEXIS 330 (1890); Ray v. Hemphill, 97 Ga. 563, 25 S.E. 485, 1895 Ga. LEXIS 527 (1895). If no time limit is fixed for performance in a contract employing agents to sell land, the agents are entitled to a reasonable time, and if, before the expiration of such reasonable time, the owner, without lawful cause, revokes the contract, the owner is liable to the agents in damages for so doing. Holland v. King, 72 Ga. App. 179, 33 S.E.2d 275, 1945 Ga. App. LEXIS 542 (1945). Measure of damages would be determined by the contract of agency. Holland v. King, 72 Ga. App. 179, 33 S.E.2d 275, 1945 Ga. App. LEXIS 542 (1945). Burden of proving the revocation of an agency is generally upon the party asserting revocation. Holland v. King, 72 Ga. App. 179, 33 S.E.2d 275, 1945 Ga. App. LEXIS 542 (1945). Power Coupled with an Interest “Coupled with an interest”. - To be “coupled with an interest,” the interest of the agent must lie in the subject matter of the agency and not merely in the contract of agency. Cutcliffe v. Chesnut, 126 Ga. App. 378, 190 S.E.2d 800, 1972 Ga. App. LEXIS 1156 (1972). Interest of the agent that will prevent revocation at the will of the principal, referred to in this section, must lie in the subject matter of the agency and not merely in the profits which are to result from the exercise of the power. Lathrop & Co. v. Brown, 65 Ga. 312, 1880 Ga. LEXIS 185 (1880); Wilkins v. McGehee, 86 Ga. 764, 13 S.E. 84, 1891 Ga. LEXIS 60 (1891); Turman v. Winecoff, 138 Ga. 726, 75 S.E. 1131, 1912 Ga. LEXIS 670 (1912); Adair v. Smith, 23 Ga. App. 290, 98 S.E. 224, 1919 Ga. App. LEXIS 91 (1919); Wheeler v. Pan Am. Petro. Corp., 48 Ga. App. 378, 172 S.E. 826, 1934 Ga. App. LEXIS 80 (1934). Agency coupled with an interest is not revocable by death. Gurr v. Gurr, 198 Ga. 493, 32 S.E.2d 507, 1944 Ga. LEXIS 454 (1944). Death ordinarily terminates an agency, but when the agency is coupled with an

interest, the rule does not apply. Scott v. Cain, 77 Ga. App. 826, 50 S.E.2d 99, 1948 Ga. App. LEXIS 653 (1948). Exception to normal death rule. - To the rule that an agency is revoked by the death of the principal there is but one exception, and that exists when the power of the agent is coupled with an interest in the subject on which the power is to be exercised and not merely in that which is produced by the exercise of the agency. Ray v. Hemphill, 97 Ga. 563, 25 S.E. 485, 1895 Ga. LEXIS 527 (1895). Agency coupled with an interest is not revocable at will. Gurr v. Gurr, 198 Ga. 493, 32 S.E.2d 507, 1944 Ga. LEXIS 454 (1944). If the power is coupled with an interest in the agent personally, the power is not revocable at will. Wheeler v. Pan Am. Petro. Corp., 48 Ga. App. 378, 172 S.E. 826, 1934 Ga. App. LEXIS 80 (1934). Mere recital that power is coupled with an interest would not of itself make it such an interest. Ray v. Hemphill, 97 Ga. 563, 25 S.E. 485, 1895 Ga. LEXIS 527 (1895). Giving agent title to instrument makes agency irrevocable. - If the agent has title to the instrument itself, the agent has such an interest as will prevent termination of the agency. Scott v. Cain, 77 Ga. App. 826, 50 S.E.2d 99, 1948 Ga. App. LEXIS 653 (1948). Power of attorney to sue under contingent-fee contract. - If an attorney is employed to sue for property under a special contract whereby the attorney’s fee is payable out of the proceeds of the suit, such a contract is in the nature of a power with an interest, and such a power is irrevocable. Twiggs v. Chambers, 56 Ga. 279, 1876 Ga. LEXIS 264 (1876). Right to control of security held not revoked by owner’s death. - Agreement between a company, the holder of a security deed, which as such had the

right to demand possession of property for the purpose of controlling the property until the net amount from the rents and profits was sufficient to satisfy the debt, which was in arrears, and the owner, whereby the company was given the immediate direction and control of the apartment house, creates a power coupled with an interest, and the agency is not terminated by the death of the owner. Henderson v. Nolting First Mtg. Corp., 184 Ga. 724, 193 S.E. 347, 1937 Ga. LEXIS 637 (1937). Factor’s power of sale held not revoked by principal’s death. - Factor’s power of sale to reimburse the factor for advances the factor has made to the principal or expense in taking care of such property is coupled with an interest and is not revoked by the death of the principal. Willingham v. Rushing, 105 Ga. 72, 31 S.E. 130, 1898 Ga. LEXIS 452 (1898). Work and expense of agent to lease held to prevent revocation at will. - Work and expense of an authorized agent in finding a tenant and securing a lease could be taken as sufficient to establish such an interest that will prevent revocation at the will of the principal in the contract of rental. Adair v. Smith, 23 Ga. App. 290, 98 S.E. 224, 1919 Ga. App. LEXIS 91 (1919) (agent had interest in contract of rental, not just contract of agency). Distribution agency not made irrevocable by agent’s efforts. - In the absence of some contractual provision to the contrary, an agency for a petroleum corporation to distribute the corporation’s products in a certain territory for commissions would not be irrevocable as a power coupled with an interest merely because the agent expends time, efforts, and money to increase the business of the agency. Wheeler v. Pan Am. Petro. Corp., 48 Ga. App. 378, 172 S.E. 826, 1934 Ga. App. LEXIS 80 (1934).

OPINIONS OF THE ATTORNEY GENERAL This section is not exhaustive of the exceptions to the general rule that an

agency is revocable at will. 1976 Op. Att’y Gen. No. 76-18.

Power that is given for consideration as security is irrevocable. - Power which is given to an agent in exchange for valuable consideration is irrevocable should the power form a part of the contractual agreement as a security for the debt. 1976 Op. Att’y Gen. No. 76-18. Power of wage collection given creditor is irrevocable during life-time of employee. - Power of attorney which authorizes the State Employees’ Credit Union to collect the unpaid compensation due a state employee in the event of the employee’s termination prior to the repayment of the employee’s loan is irrevocable during the lifetime of the employee, although it does not constitute a power coupled with an interest within the meaning of this section. 1976 Op. Att’y Gen. No. 76-18. Death of principal revokes power. - General rule is that all powers are revoked by the death of the principal. 1976 Op. Att’y Gen. No. 76-18. Death of principal does not revoke powers which are coupled with an interest in the thing itself. 1976 Op. Att’y Gen. No. 76-18. Without interest, power irrevocable during lifetime does not survive principal. - Although a power is irrevocable during

the lifetime of the principal, the power does not survive the death of the principal if the power does not confer a power coupled with an interest. 1976 Op. Att’y Gen. No. 76-18. Reciting interest insufficient. - Recital in the instrument that a power of collection is coupled with an interest is not sufficient to create the necessary interest. 1976 Op. Att’y Gen. No. 76-18. Power to collect wages of terminated state employee may not be honored. - In the absence of a contractual relationship or authorizing legislation, a state agency may not properly honor a power of attorney authorizing collection by the State Employee’s Credit Union of the unpaid wages due a terminated state employee in satisfaction of the unpaid balance on the employee’s loan. 1976 Op. Att’y Gen. No. 76-18. Payment may be to spouse or children if employee has died. - Should a terminated state employee die prior to the employee’s loan’s repayment, the unpaid compensation due the employee, not to exceed $2,500.00, may be paid to the employee’s surviving spouse or minor children, as provided in former Code 1933, §§ 66-103 - 66-105. 1976 Op. Att’y Gen.No. 76-18.

RESEARCH REFERENCES Am. Jur. 2d. 3 Am. Jur. 2d, Agency, § 32 et seq. C.J.S. 2A C.J.S., Agency, § 100 et seq. ALR. Rights and remedies upon cancellation of sales agency, 32 A.L.R. 210; 52 A.L.R. 546; 89 A.L.R. 252. Death or incompetency of principal as affecting existing power of attorney to confess judgment, 44 A.L.R. 1310. What constitutes power coupled with interest within rule as to termination of agency, 64 A.L.R. 380; 28 A.L.R.2d 1243. Payment to agent after death of principal, 67 A.L.R. 1419. Power of attorney as authorizing gift or conveyance or transfer without a present consideration, 73 A.L.R. 884. When attorney’s power deemed coupled

with an interest so as to prevent discharge or revocation, 97 A.L.R. 923. Duty and liability of former employee to former employer in respect of transactions or matters pending and uncompleted at termination of employment, 100 A.L.R. 684. Grounds for discharge of servant or agent existing during lifetime of employer, but unknown to him, as available to his executor or administrator, 109 A.L.R. 474. Construction, application, and effect of statutory provision that directors of corporation may remove officer, agent, or employee at pleasure, 111 A.L.R. 894. Real estate broker’s right to compensation as affected by death of person employing him, 146 A.L.R. 828. Implied obligation of employee not to use trade secrets or confidential informa-

tion for his own benefit or that of third persons after leaving the employment, 165 A.L.R. 1453. Agency conferred upon partners as affected by dissolution of the partnership, 170 A.L.R. 512.

What constitutes power coupled with interest within rule as to termination of agency, 28 A.L.R.2d 1243. Termination by principal of distributorship contract containing no express provision for termination, 19 A.L.R.3d 196.