O.C.G.A. § 10-6-82 (2019)

Annotations

JUDICIAL DECISIONS “Agency coupled with an interest in the agent” is similar to “a power coupled with an interest.” The latter is a power which accompanies, or is connected with, an interest. The power and the interest are united in the same person. But if we

are to understand by the word “interest,” an interest in that which is to be produced by the exercise of the power, then they are never united. The power, to produce the interest, must be exercised and by its exercise, is extinguished. The power

ceases when the interest commences and, therefore, cannot, in accurate law language, be said to be “coupled” with it. United States Epperson Underwriting Co. v. Jessup, 22 F.R.D. 336, 1958 U.S. Dist. LEXIS 4460 (M.D. Ga.), aff’d, U. S. Epperson Underwriting Co. v. Jessup, 260 F.2d 355, 1958 U.S. App. LEXIS 3090 (5th Cir. 1958). Suit on principal’s contract. - Nothing is better settled than that an agent has no right of action on contracts made for the agent’s principal except in specific instances. Henry Darling, Inc. v. Harvey-Given Co., 40 Ga. App. 771, 151 S.E. 518, 1930 Ga. App. LEXIS 691 (1930). Agent is not liable for the agent’s principal’s contract when the agency is disclosed, and an agent has no right to sue on a contract made by the agent for the principal. R.C. Craig, Ltd. v. Ships of Sea, Inc., 345 F. Supp. 1066, 1972 U.S. Dist. LEXIS 12788 (S.D. Ga. 1972). Merely instructing agent to sue. - Instruction by principal to agent to institute litigation in the agent’s name is not one of the exceptions of this section to the general rule. Rowland v. Gregg & Son, 122 Ga. 819, 50 S.E. 949, 1905 Ga. LEXIS 340 (1905). Generally, an agent has no authority to enforce in the agent’s own name the rights of the agent’s principal. To this rule there are certain exceptions. But for an agent to be merely instructed by a principal to institute litigation in the agent’s own name is not one of them. A.J. Evans Mktg. Agency v. Federated Fruit & Vegetable Growers, Inc., 170 Ga. 30, 152 S.E. 49, 1930 Ga. LEXIS 392 (1930). If a person has a legal right, it does not follow that the person may delegate to another the power to litigate in the name of such other in respect to it. A.J. Evans Mktg. Agency v. Federated Fruit & Vegetable Growers, Inc., 170 Ga. 30, 152 S.E. 49, 1930 Ga. LEXIS 392 (1930). Mere direction by an owner of property to another that the latter should file a claim in one’s own name would not make such proceeding lawful. A.J. Evans Mktg. Agency v. Federated Fruit & Vegetable Growers, Inc., 170 Ga. 30, 152 S.E. 49, 1930 Ga. LEXIS 392 (1930). Agent may not sue in agent’s name for illegal levy upon principal’s property. - Plaintiff agent cannot

maintain an action in the plaintiff’s own name for actual damages to the principal’s automobile, or for the malicious abuse of process, or for any interference with the plaintiff’s right of possession of the automobile resulting from an illegal levy. Andrew v. George Muse Clothing Co., 44 Ga. App. 291, 161 S.E. 296, 1931 Ga. App. LEXIS 678 (1931). General rule requires action on contract in name of party with legal interest. - While an agent has a right of action in the agent’s own name on a contract made with the agent in the agent’s individual name, though the agent’s agency is known, and, in cases of agency coupled with an interest in the agent, known to the party contracting with the agent, the agent may, in the agent’s own name, maintain an action on the contract, as a general rule an action on a contract must be brought in the name of the party in whom the legal interest in the contract is vested. Whitfield v. Boykin, 48 Ga. App. 141, 172 S.E. 82, 1933 Ga. App. LEXIS 499 (1933). Either corporation or agent may sue on note payable to agent. - Promissory note, payable to the order of an agent of a corporation (the principal as well as the agent being specified by name) is, in legal effect, payable to the corporation, and while the agent can maintain an action thereon by virtue of this section, so can the principal. Martin v. Lamb & Co., 77 Ga. 252, 3 S.E. 10, 1887 Ga. LEXIS 100 (1887); Young v. Murray, 3 Ga. App. 204, 59 S.E. 717, 1907 Ga. App. LEXIS 595 (1907). Contract for rent made in agent’s name. - If one rents land from the agent of the owner, the contract being made with the agent in the agent’s individual name, the latter may maintain an action on such contract, though the fact of the agent’s agency was known by the renter; and, accordingly, the payment of such rent may be enforced by a distress warrant sued out by the agent in the agent’s own name. Spence v. Wilson, 102 Ga. 762, 29 S.E. 713, 1897 Ga. LEXIS 686 (1897). If a rent contract is made with A, “trustee,” as landlord, A may foreclose a lien in A’s own name for money furnished the tenant by A, as landlord, with which to

make the crop upon the rented premises, though the land and such money belong to another person whom A represented in the transaction. Fargason v. Ford, 119 Ga. 343, 46 S.E. 431, 1904 Ga. LEXIS 830 (1904). An executor, administrator, guardian, or trustee can sue out a distress warrant in an individual capacity under paragraph (3) of this section, and terms indicating a representative capacity, if used, may be treated and disregarded as surplusage. Dean v. Donalson, 2 Ga. App. 462, 58 S.E. 679, 1907 Ga. App. LEXIS 424 (1907). Agent may sue carrier when contract of shipment does not disclose agency. - Person who having in charge as agent the goods of another makes with a common carrier a contract to ship such goods in which the agency is not disclosed may maintain by virtue of this section an action in the person’s own name for a breach of such contract. Carter v. Southern Ry., 111 Ga. 38, 36 S.E. 308, 1900 Ga. LEXIS 479 (1900). Broker with option to buy for clients may sue for breach. - Agreement to give a real estate agent the option of purchasing land for the agent’s clients gives the agent individually a right of action for breach of the contract. Pearson v. Horne, 139 Ga. 453, 77 S.E. 387, 1913 Ga. LEXIS 464 (1913). Agent buying in own name may sue for breach of warranty. - When one buys personally in one’s own name that person may maintain an action in one’s own name for a breach of a warranty in regard to the quality of the goods, although one may have been the agent of another in making the purchase. King v. Dobbs, 30 Ga. App. 441, 118 S.E. 428, 1923 Ga. App. LEXIS 497 (1923). Agent’s action upon contract in agent’s name generally subject to defenses against principal. - If an agent sues in the agent’s own name upon a contract so made for the benefit of the agent’s principal, the action will be subject to any defenses which the defendant could lawfully assert against the principal if the action had been brought in the name of the latter. Hollingsworth v. Georgia Fruit Growers, Inc., 185 Ga. 873, 196 S.E. 766, 1938 Ga. LEXIS 818 (1938).

Rule that an agent’s action in the agent’s own name upon a contract made for the benefit of the agent’s principal is subject to any defenses which the defendant could assert against the principal can have no application if the instrument sued on is a sealed instrument and the principal does not appear to be a party thereto. Hollingsworth v. Georgia Fruit Growers, Inc., 185 Ga. 873, 196 S.E. 766, 1938 Ga. LEXIS 818 (1938). Agent may sue in own name on whole contract if agent has interest. - While it was the settled rule at common law that an agent who made a contract for an agent’s principal could not sue upon the contract in the agent’s own name, yet the rule had exceptions. One of these was, that if the agent had an interest, as for commissions, etc., the agent might sue on the whole contract in the agent’s own name. Stevens v. Hunt, 61 Ga. App. 265, 6 S.E.2d 591, 1939 Ga. App. LEXIS 274 (1939). Suit for agent’s commission. - There is an exception to the rule that generally an agent cannot maintain an action on a contract which the agent has made on behalf of the agent’s principal when the agency is coupled with an interest in the agent, such as commissions. Sheriff v. Moore, 105 Ga. App. 833, 125 S.E.2d 729, 1962 Ga. App. LEXIS 1055 (1962) (action by insurance agents for insurance premium); Pendley v. Jessee, 134 Ga. App. 138, 213 S.E.2d 496, 1975 Ga. App. LEXIS 1934 (1975) (owners acting as real estate brokers for other owners). Exception authorizing suit must be alleged if agency appears. - If the plaintiff’s pleading discloses agency on the part of the plaintiff, the plaintiff cannot maintain the action without alleging that the plaintiff was a factor and contracted on the plaintiff’s own credit, or that the contract was made in the plaintiff’s individual name, or that the plaintiff’s agency was coupled with an interest in the agent known to the party contracting with the plaintiff, unless it appears that the action is founded on a promissory note or other evidence of debt payable to the plaintiff as agent of a corporation or joint stock company, or upon the sale of goods

made by the plaintiff as an auctioneer. Richmond & Danville R.R. v. Bedell & Bowers ex rel. Orr & Hunter, 88 Ga. 591, 15 S.E. 676, 1892 Ga. LEXIS 72 (1892); Burg v. Malone, 22 Ga. App. 175, 95 S.E. 739, 1918 Ga. App. LEXIS 223 (1918). If agent contracted in own name, principal’s name may be inserted by amendment. - When a suit for rent is instituted by the party with whom the actual contract of tenancy was made, it is

permissible for the plaintiff to amend plaintiff’s pleading by setting out the name of the true owner for whose use the suit is brought. The rule would be otherwise, and such an amendment is not permissible, if the plaintiff acts not in the plaintiff’s own behalf as landlord, but merely as an agent of the true owner. Clark v. Long, 25 Ga. App. 807, 105 S.E. 654, 1920 Ga. App. LEXIS 223 (1920).

RESEARCH REFERENCES Am. Jur. 2d. 3 Am. Jur. 2d, Agency, § 311 et seq. Am. Jur. Pleading and Practice Forms. 2C Am. Jur. Pleading and Practice Forms, Auctions and Auctioneers, § 1. C.J.S. 2A C.J.S., Agency, § 404 et seq. 3 C.J.S., Agency, § 501 et seq. ALR. Validity of contract by agent for compensation from third person for negotiating loan or sale with principal, 14 A.L.R. 464. Right of a factor, commission merchant, or produce broker to sell property to protect advances, 40 A.L.R. 387. Validity of contract negotiated by agent acting for both parties, 48 A.L.R. 917.

Contract for development and sale of land as creating a power coupled with interest or supporting an equitable lien, 65 A.L.R. 1080. When attorney’s power deemed coupled with an interest so as to prevent discharge or revocation, 97 A.L.R. 923. Statute of limitations: action by one secondarily liable on negotiable instrument against others secondarily liable, or against principal, as an action on such instrument, or an action on an implied promise, or a similar action, 143 A.L.R. 1062. Agent’s disregard of principal’s instructions where power coupled with an interest, 162 A.L.R. 1182.