O.C.G.A. § 10-6-53 (2019)

Annotations

JUDICIAL DECISIONS Disclosed principal liable when agent not dealt with alone. - When a travel agent was the defendant’s disclosed agent in making arrangements for hotel accommodations with the plaintiff, the defendant paid the agent for the hotel charges, but the agent failed to pay the plaintiff, the defendant was bound for the unpaid debt since it did not appear that the plaintiff had chosen to make the agent its debtor, dealing with the agent alone, and that exclusive credit was given to the agent. Southeastern Foam Prods., Inc. v. Hilton Hotels Corp., 149 Ga. App. 372, 254 S.E.2d 494, 1979 Ga. App. LEXIS 1853 (1979). Principal’s name and agent’s acting for principal must appear to bind principal. - Latitude is allowed as to the form in which an agent may contract, but in order to bind a principal the name of the principal must be disclosed, and the agent must profess to act for the principal. Moore v. Adams, 153 Ga. 709, 113 S.E. 383, 1922 Ga. LEXIS 157 (1922). Disclosure of name must be in writing when required for principal to be bound. - This section does not purport to authorize an agent to contract for the agent’s principal in a form which would be insufficient if the principal acted personally; if it is essential that the contracting party’s name should appear in the writing when the party is contracting for the party, it is also necessary when the party contracts through an agent. Moore v. Adams, 153 Ga. 709, 113 S.E. 383, 1922 Ga. LEXIS 157 (1922). Duly constituted agent is not responsible if agent has named principal. - It is a general rule - standing on strong foundations, and pervading every system of jurisprudence - that if an agent is duly constituted, and names the agent’s principal, and contracts in the agent’s name, the principal is responsible and not the agent. Gibbs v. Carolina Portland Cement Co., 50 Ga.

App. 229, 177 S.E. 760, 1934 Ga. App. LEXIS 714 (1934). Instrument specifying agency and naming principal is binding on principal. - If in the body or on the face of the instrument the agency is distinctly specified and the principal indicated, and the contract is substantially in the name of such principal, the latter, and not the agent, will be regarded as the maker of the instrument, though the instrument is signed by the agent only, provided, of course, the agent has authority to bind the principal. McRitchie v. Atlanta Trust Co., 170 Ga. 296, 152 S.E. 834, 1930 Ga. LEXIS 443 (1930); Dover v. Burns, 186 Ga. 19, 196 S.E. 785, 1938 Ga. LEXIS 545 (1938). Instrument binding on principal in individual capacity. - Agent acting within the scope of the agent’s authority may bind the agent’s principal, although signing in the agent’s individual capacity only, when it appears from the instrument that the principal and not the agent is intended to be bound. 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). “Agent for” designated person in signature is merely descriptive. - Expression “agent for” a designated person following the name in a signature attached to a contract is merely descriptio personae, and its presence in the signature does not of itself necessarily render the contract the undertaking of the designated principal, acting by and through the signer as the principal’s agent. Dorsey v. Rankin, 43 Ga. App. 12, 157 S.E. 876, 1931 Ga. App. LEXIS 161 (1931). Evidence that contract is principal’s. - Under former Code 1882, §§ 2195 and 2211, when two notes were given to the plaintiff for cotton seed for Green J. Jordan’s plantation and signed,

“J. Spradley, Agent for Green J. Jordan,” this was a contract of Jordan, the principal, and not the contract of Spradley, the agent; more especially, as the evidence in the record disclosed the fact that the agency was made known to the payee of the notes at the time the notes were given. Tiller v. Spradley, 39 Ga. 35, 1869 Ga. LEXIS 168 (1869). Acts held those of principal, not agent. - Under former Code 1873, § 2195, a deed made by a trustee under former Code 1873, § 2563 and signed by the trustee as “trustee of M.R.” did not bind the trustee individually as to the warranty. Shacklett v. Ransom, 54 Ga. 350, 1875 Ga. LEXIS 179 (1875). Contract signed by a person who adds after the person’s signature the words “general manager” is not the individual undertaking of the person signing, if the contract shows on the contract’s face that the contract was made in behalf of another, or if, in a suit for the contract’s breach, this fact appears by extrinsic evidence. Raleigh & Gaston R.R. v. Pullman Co., 122 Ga. 700, 50 S.E. 1008, 1905 Ga. LEXIS 304 (1905). Executory contract between “F.C. Miller, administrator of the estate of E.P. Miller,” and H, properly construed, was an agreement by F.C. Miller in the representative capacity. Miller v. Hines, 145 Ga. 616, 89 S.E. 689, 1916 Ga. LEXIS 422 (1916). If the check of the wife is signed by the husband as agent for his wife, the latter being named, it is in effect and in fact a check drawn by the wife upon an account kept in the bank in the name of the husband as agent for the wife. McRitchie v. Atlanta Trust Co., 170 Ga. 296, 152 S.E. 834, 1930 Ga. LEXIS 443 (1930). When two attorneys in fact were expressly authorized by power of attorney to execute a deed in the names of the principals “or otherwise,” under the facts, the security deed would be construed to be a conveyance by them in behalf of themselves and as attorneys in fact for the other heirs at law. Cocke v. Bank of Dawson, 180 Ga. 714, 180 S.E. 711, 1935 Ga. LEXIS 537 (1935). Noncompetition clause in parties’ agreement did not bar members of a limited

liability company that sold a childcare facility from opening another daycare center as the members were not parties to the agreement and were not bound thereby; further, a member’s signature was as a disclosed agent. Primary Invs., LLC v. Wee Tender Care III, Inc., 323 Ga. App. 196, 746 S.E.2d 823, 2013 Ga. App. LEXIS 665 (2013), cert. denied, No. S13C1735, 2014 Ga. LEXIS 34 (Ga. Jan. 6, 2014). Parent signed as agent for adult son, not in personal capacity. - Trial court erred in granting summary judgment to a medical center and denying it to a patient’s parent because the parent signed the form on behalf of the adult son as an agent, not in a personal capacity; thus, the parent was not personally liable for any unpaid medical bills. Winterboer v. Floyd Healthcare Mgmt., 334 Ga. App. 97, 778 S.E.2d 354, 2015 Ga. App. LEXIS 579 (2015). No evidence defendant “made” contract. - There was no evidence to support that the defendant “made” a contract with the plaintiff when the undisputed evidence was that the plaintiff executed the loan agreement with the mortgagee in 1998, that the defendant began servicing the plaintiff’s loan in May 2005, and that the mortgagee assigned the note and security deed to the trustee on March 10, 2010. Phillips v. Ocwen Loan Servicing, LLC, 92 F. Supp. 3d 1255, 2015 U.S. Dist. LEXIS 31357 (N.D. Ga. 2015). Contract held individual undertaking, not agency. - Under this section, a contract by one described as president of an association indicated an individual undertaking rather than an agency. Candler v. DeGive, 133 Ga. 486, 66 S.E. 244, 1909 Ga. LEXIS 253 (1909). Disclosure of agency must be pled in action against principal. - In an action against a principal based on a contract allegedly entered into by an agent, when the plaintiff did not allege that the agent revealed that the agent was acting for the principal, the plaintiff’s pleading was insufficient. Georgia Cas. & Sur. Co. v. Hardrick, 211 Ga. 709, 88 S.E.2d 394, 1955 Ga. LEXIS 437 (1955). Admission of agency in answer binding on defendant. - When the plaintiff alleged that a certain individual

was the agent of defendant company, and the answer admitted it, and no amendment was made striking that part of the answer, and the trial proceeded on the only issue left, to wit, whether the defendant had complied with the defendant’s contract, this admission was binding on the defendant, notwithstanding testimony admitted without objection that the individual bought an option on the property and transferred the option to the defendant. Wofford Oil Co. v. Story, 52 Ga. App. 496, 183 S.E. 840, 1936 Ga. App. LEXIS 161 (1936). When issue of who is bound is question of fact. - Omitting cases of contracts under seal, negotiable instruments, and those in which there is an express declaration in writing or an intention and agreement on the part of an agent to be individually bound, usually when the agent contracts in the agent’s own name, but with the agent’s principal known, the question as to whether the principal or agent is bound is one of fact. Gibbs v. Carolina Portland Cement Co., 50 Ga. App. 229, 177 S.E. 760, 1934 Ga. App. LEXIS 714 (1934). Trial court erred by granting summary judgment to a private entity operating a county animal control shelter because genuine issues of material fact existed as to whether the shelter could be held liable for the euthanization of a hospitalized patient’s dogs based upon the theory of promissory estoppel since while the releases may have authorized the shelter to euthanize the dogs, the shelter was also authorized to subsequently enter into a promise not to do so; thus, the patient, as a principal, would be entitled to damages suffered as a result of representations made to the patient’s authorized agent acting on the patient’s behalf to protect the well-being of the patient’s dogs. Greenway v. Northside Hosp., 317 Ga. App. 371, 730 S.E.2d 742, 2012 Ga. App. LEXIS 706 (2012), rev’d, 294 Ga. 112, 751 S.E.2d 351, 2013 Ga. LEXIS 951 (2013), vacated in part, 328 Ga. App. 473, 763 S.E.2d 488, 2014 Ga. App. LEXIS 337 (2014). Parol evidence may show contract was in fact principal’s contract. - Under former Civil Code 1895, §§ 3022

and 3039, it was competent to show by parol evidence that the contract nominally that of the agent was in fact that of the principal. Fitzgerald Cotton Oil Co. v. Farmers Supply Co., 3 Ga. App. 212, 59 S.E. 713, 1907 Ga. App. LEXIS 598 (1907). If it does not appear from the face of the contract whether it is the signer’s individual undertaking or is that of the signer’s principal acting through the agent as the principal’s agent, it may, especially where the contract is not executed under seal, be shown extrinsically that the contract is that of the principal, executed for and in the principal’s behalf by the principal’s agent. Dorsey v. Rankin, 43 Ga. App. 12, 157 S.E. 876, 1931 Ga. App. LEXIS 161 (1931). Where principal different from one indicated in signature. - Where the question as to who is the real contracting party is one of fact which can be extrinsically determined, it may be shown that the person signing a contract in one’s own name, with descriptive terms of agency after one’s signature, did so for and in behalf of another as the principal, by and through oneself as agent, although one’s principal may be another and different person from the one indicated as the signer’s principal in the descriptive terms attached to one’s signature. Dorsey v. Rankin, 43 Ga. App. 12, 157 S.E. 876, 1931 Ga. App. LEXIS 161 (1931). Agency cannot be proved by evidence of mere declarations of the alleged agent. Wofford Oil Co. v. Story, 52 Ga. App. 496, 183 S.E. 840, 1936 Ga. App. LEXIS 161 (1936). Agent’s declarations admissible with other evidence. - When accompanied by other evidence as to the conduct of the person in the character of agent and acceptance by the alleged principal of the fruits of the agency, declarations of the alleged agent are admissible in evidence. Wofford Oil Co. v. Story, 52 Ga. App. 496, 183 S.E. 840, 1936 Ga. App. LEXIS 161 (1936). Summary judgment improper. - Summary judgment for an engineer in a concrete company’s suit for services and materials provided to a construction project was error because the evidence could have authorized a jury to have found that the engineer obtained the concrete

company’s agreement to provide services and material to the construction project without disclosing that the concrete company was dealing with the engineer, not directly, but only as an agent of the developer for purposes of O.C.G.A. §§ 10-6-53 and 10-6-85; a jury could have found that the concrete company reasonably understood that the engineer was binding itself as well as the developer. Action Concrete, Inc. v. Focal Point Eng’g, Inc., 296 Ga. App. 567, 675 S.E.2d 303, 2009 Ga. App. LEXIS 274 (2009). Trial court erred in granting an insurer summary judgment and in denying an attorney summary judgment on the insurer’s breach of contract claim because the evidence showed no meeting of the minds identifying the attorney as a party to the contract upon which the insurer based the insurer’s claim and, therefore, no enforceable contract existed between the insured and the attorney; the closing instructions formed a contract between the insured and a law firm. Villanueva v. First Am. Title Ins. Co., 313 Ga. App. 164, 721 S.E.2d 150, 2011 Ga. App. LEXIS 1082

(2011), cert. denied, No. S12C0502, 2012 Ga. LEXIS 607 (Ga. June 18, 2012), aff’d, 292 Ga. 630, 740 S.E.2d 108, 2013 Ga. LEXIS 268 (2013). Complaint alleging that an agreement had been reached between plaintiff’s neighbor and a representative of an animal control facility for the safekeeping of plaintiff’s dogs while plaintiff was hospitalized, set forth a claim for promissory estoppel, O.C.G.A. § 13-3-44(a), and plaintiff, as a principal, would be entitled to damages suffered as a result of representations made to plaintiff’s neighbor, authorized agent acting on plaintiff’s behalf, to protect the well-being of plaintiff’s dogs. Thus, a grant of summary judgment in favor of the operator of the animal control facility was reversed. Greenway v. Northside Hosp., 317 Ga. App. 371, 730 S.E.2d 742, 2012 Ga. App. LEXIS 706 (2012), rev’d, 294 Ga. 112, 751 S.E.2d 351, 2013 Ga. LEXIS 951 (2013), vacated in part, 328 Ga. App. 473, 763 S.E.2d 488, 2014 Ga. App. LEXIS 337 (2014).

RESEARCH REFERENCES Am. Jur. 2d. 3 Am. Jur. 2d, Agency, §§ 1 et seq., 66 et seq., 166 et seq., 273. C.J.S. 2A C.J.S., Agency, § 411 et seq. ALR. Liability of undisclosed principal on sealed contract, 32 A.L.R. 162. Liability of principal for overdraft drawn by agent and paid by bank, 58 A.L.R. 816. Acceptance by collection agent authorized to receive money only, of something else upon which he realizes money, as binding principal, 94 A.L.R. 784.

Sufficiency of execution of instrument by agent or attorney in fact in name of principal without his own name appearing, 96 A.L.R. 1251. Liability of corporation on contract of promoters, 123 A.L.R. 726. Use of trade name in connection with contract executed by agent as sufficient disclosure of agency or principal to protect agent against personal liability, 150 A.L.R. 1303. Imputation of servant’s or agent’s contributory negligence to master or principal, 53 A.L.R.3d 664.