O.C.G.A. § 10-6-58 (2019)

Annotations

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION APPLICATION EVIDENCE General Consideration Agent’s notice of fact connected with agency is notice to principal. - Notice to an agent of a fact connected with the subject matter of the agency is notice to the agent’s principal. Whitten v. Jenkins, 34 Ga. 297, 1866 Ga. LEXIS 89 (1866). Notice to an agent in the business for which the agent is employed is notice to the principal. Wilensky v. Martin, 4 Ga. App. 187, 60 S.E. 1074, 1908 Ga. App. LEXIS 242 (1908).

When notice of a fact is communicated to a general agent, or to a special agent in absolute charge of a particular business, knowledge of all the facts suggested by the notice is imputable to the principal. Fireman’s Fund Ins. Co. v. Davis, 42 Ga. App. 49, 155 S.E. 105, 1930 Ga. App. LEXIS 234 (1930). Notice to an agent of any matter within the scope of the agency is notice to the principal. Hartford Accident & Indem. Co. v. Hartley, 275 F. Supp. 610, 1967 U.S. Dist. LEXIS 7638 (M.D. Ga. 1967), aff’d,

389 F.2d 91, 1968 U.S. App. LEXIS 8540 (5th Cir. 1968). If agents, as attorneys of claimant, were making an investigation in the interest of their client, then the claimant is chargeable with whatever notice such agents had. Deveney, Hood & Co. v. Burton, 110 Ga. 56, 35 S.E. 268, 1900 Ga. LEXIS 324 (1900). If an attorney for a mortgagee had knowledge of an adverse claim to the property which was subsequently bought at an execution sale by the attorney as agent for the attorney’s spouse, if the notice of the claim was still in the mind of the attorney at the time of the execution sale, such knowledge would be imputable to the attorney’s spouse, notwithstanding that the attorney acted in the dual capacity of attorney for the mortgagee and of agent for the spouse. Faircloth v. Taylor, 147 Ga. 787, 95 S.E. 689, 1918 Ga. LEXIS 145 (1918). Knowledge of a dual agent is imputable to both principals. Carlton v. Moultrie Banking Co., 170 Ga. 185, 152 S.E. 215, 1930 Ga. LEXIS 419 (1930). Agent who proves false to principal. - Rule of this section is modified when an agent proves false to the principal. Loftin v. Great S. Home Benevolent Ass’n, 9 Ga. App. 121, 70 S.E. 353, 1911 Ga. App. LEXIS 432 (1911); Hartford Accident & Indem. Co. v. Hartley, 275 F. Supp. 610, 1967 U.S. Dist. LEXIS 7638 (M.D. Ga. 1967), aff’d, 389 F.2d 91, 1968 U.S. App. LEXIS 8540 (5th Cir. 1968). Conspiracy with other party keeps section from applying. - Rule of former Civil Code 1910, § 3599 does not apply if an agent conspires with the other party. In such a case, the principal is not bound thereby nor charged with knowledge of the facts thus acquired by the agent under former Civil Code 1910, § 3600. Terry v. International Cotton Co., 138 Ga. 656, 75 S.E. 1044, 1912 Ga. LEXIS 647 (1912). Imputation imposes duty on agent to disclose material facts. - Since knowledge of an agent is imputed to the principal by law and only by agent’s performance of this duty can principal acquire actual knowledge and govern or

protect oneself, an agent is under a duty to communicate to the agent’s principal all pertinent and material facts concerning any transaction entered into on behalf of the principal. Dawes Mining Co. v. Callahan, 246 Ga. 531, 272 S.E.2d 267, 1980 Ga. LEXIS 1184 (1980). Proof of agency is indispensable for section to apply. - While notice to the agency is notice to the principal, proof of the agency is indispensable; and the fact that one as father or friend gives information or advice in reference to a land trade does not make such friend the agent in the sense of the rule stated in this section. McNamara v. McNamara, 62 Ga. 200, 1879 Ga. LEXIS 481 (1879). Knowledge acquired during authorized duties is imputable. - Knowledge of an agent which is imputable to a principal is the knowledge which is acquired during the performance of authorized duties. Estes v. Standard Fire Ins. Co., 66 Ga. App. 775, 19 S.E.2d 35, 1942 Ga. App. LEXIS 303 (1942). Subject matter of notice must be connected with agency. - In order that notice to an agent may operate as notice to the principal, the subject matter of the notice must be connected with the agency. Pursley v. Stahley, 122 Ga. 362, 50 S.E. 139, 1905 Ga. LEXIS 206 (1905); Central of Ga. Ry. v. Americus Constr. Co., 133 Ga. 392, 65 S.E. 855, 1909 Ga. LEXIS 222 (1909). If the person receiving notice is not the agent of the adverse party, or when the notice is on a matter in no wise connected with the agency, no implication that the party has received such notice arises. Cloud v. Bagwell, 83 Ga. App. 769, 64 S.E.2d 921, 1951 Ga. App. LEXIS 958 (1951). Application Notice to person whose actions are accepted by principal. - When H, holding a deed as security for a debt, sold the land under a power of sale and had it struck off to H, approached B, a money lender, and told B that H had bought B a farm, and B, being satisfied with the transaction, let H have the money and took a deed to the land, executing a title bond to H, B was put upon inquiry and

Application (Cont’d) chargeable with knowledge of facts invalidating the sale, by the sudden and unexpected communication from H and also by reason of the fact that H acted as H’s own agent within this section. Wright v. Harris, 221 F. 736, 1915 U.S. Dist. LEXIS 1620 (D. Ga.), aff’d, 228 F. 1021, 1915 U.S. App. LEXIS 2080 (5th Cir. 1915). Notice to traveling salesperson for dealer. - If, after dissolution of a partnership, a former member of the firm, on being approached and offered goods for sale by a traveling salesperson for a dealer who, before the dissolution had sold goods to the firm, tells the salesperson that the member is no longer a member of the firm, this is notice of the dissolution to the dealer represented by the salesperson. Franklin Buggy Co. v. Carter, 21 Ga. App. 576, 94 S.E. 820, 1918 Ga. App. LEXIS 411 (1918). Notice to agent is imputed to carrier. - General liability insurers of a contractor were held to have a duty to defend the owner of a real estate project because their agent had the actual or apparent authority to issue certificates of insurance to the owner, and to bind their obligations to the owner, under Georgia agency law. Sumitomo Marine & Fire Ins. Co. of Am. v. S. Guar. Ins. Co., 337 F. Supp. 2d 1339, 2004 U.S. Dist. LEXIS 20097 (N.D. Ga. 2004). Notice to agent for landlord dealing with tenant. - Notice of the defective condition of the property when given to the agent with whom the tenant dealt, under the instructions of the landlord, when the premises were rented and to whom the rents were paid is notice to the landlord. Wall Realty Co. v. Leslie, 54 Ga. App. 560, 188 S.E. 600, 1936 Ga. App. LEXIS 701 (1936). Knowledge of employees of tourist camp operator failing to register guests. - It is not required that the owner or operator of a tourist camp be personally in actual charge of the register; if the owner’s agents, servants, or employees are in charge thereof and fail to secure from the occupants of the cabins or rooms the registration and information

required by Ga. L. 1945, p. 326, § 6, the owner or operator is responsible therefore under former Code 1933, §§ 4-309 and 4-311. Copeland v. Leathers, 206 Ga. 280, 56 S.E.2d 530, 1949 Ga. LEXIS 455 (1949). Notice to a partner is notice to the partnership of which the partner is a member, and service upon the partner is service upon the firm. Render & Hammett v. Hartford Fire Ins. Co., 33 Ga. App. 716, 127 S.E. 902, 1925 Ga. App. LEXIS 702 (1925). Notice to officer is notice to corporation. - Notice to an officer of a corporation, acting for it in connection with its business and within the scope of its agency, is notice to the principal. Holland v. McRae Oil & Fertilizer Co., 134 Ga. 678, 68 S.E. 555, 1910 Ga. LEXIS 321 (1910). Ordinarily, a corporation is presumed to have notice of any material fact disclosed to any agent authorized to act in its behalf in the peculiar circumstances or with reference to the particular business or undertaking at hand. Wallis v. Heard, 16 Ga. App. 802, 86 S.E. 391, 1915 Ga. App. LEXIS 231 (1915). Knowledge of the officers of a corporation is knowledge to that corporation, and the corporation is bound thereby. Stein Steel & Supply Co. v. Franco, 148 Ga. App. 186, 251 S.E.2d 74, 1978 Ga. App. LEXIS 3117 (1978). Notice of a law firm’s potential conflict of interest was directly imputable to a company as the company’s president signed conflict letters while acting in connection with the company’s business as well as the president’s own. Accordingly, whether or not the company was a party to the original conflict letter, the company was charged with knowledge of the conflict of interest and of the law firm’s role in the transactions at issue. Smith v. Morris, Manning & Martin, LLP, 293 Ga. App. 153, 666 S.E.2d 683, 2008 Ga. App. LEXIS 860 (2008), cert. denied, No. S08C2077, 2008 Ga. LEXIS 992 (Ga. Nov. 17, 2008). Notice to president of bank. - Knowledge of a president of a bank that certain stock had not been fully paid up is imputable to the bank, if the president, acting for the bank and in the bank’s

behalf, accepted a transfer of the stock to the bank, and the bank thereunder retained the stock. Fouche & Fouche v. Merchants Nat’l Bank, 110 Ga. 827, 36 S.E. 256, 1900 Ga. LEXIS 644 (1900). Notice to cashier. - Cashier of a bank is held out as the bank’s general agent for the management of the bank’s notes and other securities. Therefore, the same rule applies as to notice as in the case of other agents. Bank of St. Marys v. Mumford & Tyson, 6 Ga. 44, 1849 Ga. LEXIS 7 (1849); Lessee of Veasey v. Graham, 17 Ga. 99, 1855 Ga. LEXIS 74 (1855). Actual notice of a dissolution given by one partner to the cashier of a bank, which sues upon a note thereafter executed at the instance of such cashier as the bank’s representative by the other alleged partner in the name of the partnership, and payable to the plaintiff, is sufficient notice to the bank. Bennett v. Watson, 31 Ga. App. 367, 120 S.E. 802, 1923 Ga. App. LEXIS 949 (1923). Notice to real estate agent. - In an action involving a defect in a home’s septic system, the home buyers’ agent was not entitled to summary judgment on a Brokerage Relationship in Real Estate Transactions Act (BRETA), O.C.G.A. § 10-6A-1 et seq., claim because while notice to the buyers’ agent was notice to the buyers under O.C.G.A. § 10-6-58, a disputed issue existed as to whether the buyers’ agent actually disclosed the information regarding the second pumping of the septic tank to the buyers. Davis v. Silvers, 295 Ga. App. 103, 670 S.E.2d 805, 2008 Ga. App. LEXIS 1217 (2008). Notice to officer entering into contract with corporation. - If a director or other officer of a corporation is dealing in the director’s behalf or in conjunction with others in making a contract with the corporation, the director becomes an adverse party, and notice to the director is not notice to the corporation. Wallis v. Heard, 16 Ga. App. 802, 86 S.E. 391, 1915 Ga. App. LEXIS 231 (1915). Agent acting on own behalf. - While it is true that notice to the agent of any matter connected with the agency is notice to the principal, a corporation is not

charged with notice to the corporation’s officer or agent while the officer or agent is acting in the officer’s or agent’s private capacity and for the officer’s or agent’s own benefit with third persons. Boles v. Hartsfield Co., 50 Ga. App. 442, 178 S.E. 416, 1935 Ga. App. LEXIS 354 (1935). Notice or knowledge of failure of consideration of a negotiable promissory note which the director of a bank sells to it before the maturity of the paper is not imputable to the bank, when in the transaction the seller did not act for it at all, but exclusively for the seller, and the bank was represented by another of the bank’s officials, who alone acted for it. English-American Loan & Trust Co. v. Hiers, 112 Ga. 823, 38 S.E. 103, 1901 Ga. LEXIS 102 (1901). Banking corporation is not charged with notice of facts which became known to its president while the president is dealing in the president’s private capacity and in the president’s own behalf with third persons. Peoples Bank v. Exchange Bank, 116 Ga. 820, 43 S.E. 269, 1902 Ga. LEXIS 287 (1902); Alsabrooks v. Bank of Sparta, 22 Ga. App. 693, 97 S.E. 111, 1918 Ga. App. LEXIS 690 (1918). Knowledge of insurance agent is imputable to company. - If an agent knew the status of the title to property insured at the time of issuance of the policy, such knowledge will be notice to the company. Atlas Assurance Co. v. Kettles, 144 Ga. 306, 87 S.E. 1, 1915 Ga. LEXIS 177 (1915). In the absence of anything in the policy limiting the insurance agent’s authority, the agent’s knowledge that the insured had a hernia condition which was not disabling to any extent prior to the issuance of the policy was imputed to the company, and the insured would not be barred from a recovery for sickness caused by the aggravation of such hernia after the policy was issued merely because of its preexistence. American Life Ins. Co. v. Stone, 78 Ga. App. 98, 50 S.E.2d 231, 1948 Ga. App. LEXIS 689 (1948). When an authorized agent of an insurance company has actual knowledge of the existence of a fact concerning the status of the potential policyholder or prospect, which fact would have the effect of voiding

Application (Cont’d) the policy, but the insurance company issues a policy which contains a provision that the policy is void upon the existence of such fact, the insurance company is deemed to have waived such provision. The knowledge of the agent is imputed to the principal. Fireman’s Fund Ins. Co. v. Standridge, 103 Ga. App. 442, 119 S.E.2d 585, 1961 Ga. App. LEXIS 962 (1961). Unless there is a limitation on the authority of the agent in the application itself sufficient to put the proposed insured on notice of the limitation on the authority of the agent, the general rule applies that the knowledge of the agent is the knowledge of the principal. Canal Ins. Co. v. Bryant, 166 Ga. App. 483, 304 S.E.2d 565, 1983 Ga. App. LEXIS 2217 (1983). An insurance company had actual knowledge of an applicant’s misrepresentation about prior cancellation of a policy because its own agency had secured the policy; the “agent” for purposes of application of this section was the insurance agency, not merely the individuals working for the agency. Graphic Arts Mut. Ins. Co. v. Pritchett, 220 Ga. App. 430, 469 S.E.2d 199. Where authority of insurance agent has been circumscribed by policy. - Knowledge of local agents as to the fact that premium was not paid by the insureds before the loss was not imputable to the company, where the policy had been delivered at the time of the payments to the agents and the more comprehensive authority of the local agents had been reduced and circumscribed by the terms of the policy. Estes v. Standard Fire Ins. Co., 66 Ga. App. 775, 19 S.E.2d 35, 1942 Ga. App. LEXIS 303 (1942). Employer is not insurer’s agent in selecting insurer, policy, and coverage for employees. - In selecting a group insurer, in selecting a policy, and in selecting coverages to be afforded by the insurer, for contributing employees, employers act not as agents of the insurer but for their employees or for themselves. Dawes Mining Co. v. Callahan, 246 Ga.

531, 272 S.E.2d 267, 1980 Ga. LEXIS 1184 (1980). Employer’s knowledge is imputed to insurer as agent for making policy effective. - When an employer obtains a group insurance policy covering the employer’s employees, the employee acts as agent of the insurance company for every purpose necessary to make effective the group policy, and the insurance company has imputed knowledge of facts which the employer knows. Dawes Mining Co. v. Callahan, 246 Ga. 531, 272 S.E.2d 267, 1980 Ga. LEXIS 1184 (1980). Notice imputed to principal is actual, not constructive, notice. - Actual notice to an agent of any matter connected with the agency is also actual notice to the agent’s principal and is not merely constructive notice to the latter. Prater v. Cox, 64 Ga. 706, 1880 Ga. LEXIS 396 (1880), overruled, Rodgers v. Elder, 108 Ga. 22, 33 S.E. 662, 1899 Ga. LEXIS 177 (1899); Hillyer v. Brogden, 67 Ga. 24, 1881 Ga. LEXIS 122 (1881); Deveney, Hood & Co. v. Burton, 110 Ga. 56, 35 S.E. 268, 1900 Ga. LEXIS 324 (1900); Union Sav. Bank & Trust Co. v. Ellis, 110 Ga. 494, 35 S.E. 780, 1900 Ga. LEXIS 566 (1900). Actual notice to an agent can be imputed to the principal, but, even then, though the principal’s information rests only on the implication that the agent has imparted the agent’s knowledge, it is impliedly actual knowledge. Wiley v. Rome Ins. Co., 12 Ga. App. 186, 76 S.E. 1067, 1913 Ga. App. LEXIS 488 (1913). Actual notice to the agent is imputed actual notice to the principal. Mumford v. Sears, Roebuck & Co., 44 Ga. App. 623, 162 S.E. 661, 1931 Ga. App. LEXIS 788 (1931). Actual notice to an agent of any matter connected with the agent’s agency is also actual notice to the agent’s principal and is not merely constructive notice to the latter. Copeland v. Leathers, 206 Ga. 280, 56 S.E.2d 530, 1949 Ga. LEXIS 455 (1949). Expression, “constructive notice,” used in Atlas Assurance Co. v. Kettles, 144 Ga. 306, 87 S.E. 1 (1915), was not used in its strict sense, but as meaning that

knowledge of the agent at the time of the issuance of the policy would be imputed to the agent’s principal. Liverpool & London & Globe Ins. Co. v. Hughes, 145 Ga. 716, 89 S.E. 817, 1916 Ga. LEXIS 456 (1916). Agent must have been acting in course of employment. - If the officer or agent at the time of the alleged knowledge or notice was not acting for the corporation or in pursuance of the corporation’s business and in the course of the agent’s employment and duties, it is not bound or affected. Georgia Power Co. v. Kinard, 47 Ga. App. 483, 170 S.E. 688, 1933 Ga. App. LEXIS 528 (1933). No imputed knowledge shown. - Superior court did not err in granting a purchaser summary judgment in an administrator’s action alleging that the purchaser aided and abetted an executor’s breach of fiduciary duties when it bought properties from the executor because, assuming that an individual acted as agent for a purchaser in filing an affidavit seeking a dispossessory warrant prior to the purchase of properties, such evidence did not show that any knowledge by the individual and a second purchaser of the executor’s alleged fraud, which they concealed for their own benefit, could be imputed to the purchaser; for similar reasons, the purchaser could not have ratified the alleged tortious conduct of the individual and the second purchaser. Witcher v. JSD Props., LLC, 286 Ga. 717, 690 S.E.2d 855, 2010 Ga. LEXIS 232 (2010).

Evidence How principal proves no notice to agent. - Under former Civil Code 1895, §§ 3027 and 5160, if it was sought to charge a principal with notice, the principal was only required to offer the agent to whom the opposite party claimed the party gave the notice. The principal need not undertake to prove a negative by producing all of the principal’s agents in order to show that each did not receive the notice. Travelers Ins. Co. v. Thornton, 119 Ga. 455, 46 S.E. 678, 1904 Ga. LEXIS 232 (1904). Effect of proving want of notice to agent. - Proof that there was want of notice of a judgment against the principal on the part of an agent is not proof of want of such notice on the part of the principal. Eason v. Vandiver, 108 Ga. 109, 33 S.E. 873, 1899 Ga. LEXIS 195 (1899). Jury questions were presented, in pleading alleging sickness resulting from the aggravation of a preexisting hernia, as to whether the disability was a sickness within the meaning of the insurance policy and as to whether the company had waived the defense that the hernia existed before the policy was written or was estopped from defending on that ground since it appeared that the company had knowledge of such hernia through the company’s agent taking the application for the insurance. American Life Ins. Co. v. Stone, 78 Ga. App. 98, 50 S.E.2d 231, 1948 Ga. App. LEXIS 689 (1948).

RESEARCH REFERENCES Am. Jur. 2d. 3 Am. Jur. 2d, Agency, § 224 et seq. C.J.S. 2A C.J.S., Agency, §§ 473 et seq., 483 et seq. ALR. Imputation of attorney’s knowledge of facts to his client, 4 A.L.R. 1592; 38 A.L.R. 820. Notice to salesman as chargeable to principal, 43 A.L.R. 745.

Knowledge of agent as imputable to principal in respect of transaction subsequent to agency, or transaction with which agent had no connection, 73 A.L.R. 420. Agent’s knowledge of his own embezzlement or other misconduct as imputable to principal in latter’s suit on fidelity bond or insurance, 105 A.L.R. 535. Imputation of knowledge of agent acting for both parties to transaction, 4 A.L.R.3d 224.