Mustin v. Barnes

Full title: MUSTIN v. BARNES

Court: Court of Appeals of Georgia

Date published: Jul 15, 1953

77 S.E.2d 94 (Ga. Ct. App. 1953)

77 S.E.2d 94

Opinion

34395.

DECIDED JULY 15, 1953.

Action on contract. Before Judge Kennedy. Richmond Superior Court. October 4, 1952.

Cumming, Nixon Eve, for plaintiff in error.

W. D. Lanier, contra.

1. Under the evidence adduced in this case, the jury were authorized to find that the defendant's agent had implied authority to employ the plaintiff to perform the work for which he brought suit to recover the price, and also to find that the plaintiff was not cognizant of any limitation on the amount the agent was authorized by the defendant to expend for the purposes for which the plaintiff was employed.

2. The charge as given by the trial judge was full and fair to the defendant, and none of the excerpts complained of in the seven special grounds of the motion for a new trial were erroneous for any of the reasons assigned. The trial court did not err in denying the amended motion for new trial.

DECIDED JULY 15, 1953.

H. E. Barnes sued Miss Louisa Mustin for $1,309.10, alleged to be due him on account of certain work performed by the plaintiff in tearing out an old wooden spillway in the dam of a pond owned by the defendant, and for work in diverting the water of the creek feeding the pond around the dam or spillway site. Upon the trial of the case, it appeared from the evidence that the defendant, desiring to have an old wooden spillway removed from the pond she owned, employed one W. B. Getchell, an engineer, as her agent to supervise the removal of the spillway and to design two types of replacing structures, one of wood or timber and one of concrete, the defendant to secure bids or cost estimates on the different types and then decide which she would have constructed, if any. With the defendant's approval, Getchell employed the plaintiff to perform the actual work of removal, and the plaintiff entered on the job about December 1, 1950, using a tractor and bulldozer, a drag line and several laborers. The work of removing the spillway progressed, and just before Christmas it appeared that the removal of the old spillway was practically complete. Getchell had taken borings in an effort to determine how deep the foundation for a concrete dam would have to be placed; but, due to the quantity of water passing through the site, his work in this regard was hampered. The defendant visited the scene of the work and Getchell informed her that he considered it necessary and desirable to divert the water around the site of the spillway by cutting a diversion ditch through the earthen dam. The defendant objected to this being done, but the plaintiff's evidence tended to show that in the end the defendant left the question of whether this should be done to Getchell. In the meantime, the plaintiff had received payment for the job of removing the old spillway, in the sum of $1,112, and had given a contractor's affidavit or receipt reciting that all work and material had been paid for except $162, which according to a penciled notation on the affidavit was still owing him by the defendant. The defendant went to New York shortly after her visit to the site of the work and did not return for some ten days. The day after Christmas, Getchell instructed the plaintiff to cut the diversion ditch through the dam and around the spillway site. Upon her return from New York, the defendant found that this job of diverting the stream had been completed, but she refused to pay the plaintiff's charge of $1,177 on the ground that Getchell, as her agent, had exceeded his authority in having the work of diverting the stream done, and that the plaintiff knew or should have known that such work was not authorized by her. The defendant further refused to pay the balance of $162 claimed by the plaintiff to be due for the removal of the old spillway, on the ground that she had placed a limit of $1,000 to be expended for that purpose, that the plaintiff had knowledge of that limitation, and that, by paying $1,112 for that work, she had overpaid the plaintiff, and was not obligated to pay him any further sum on that account.

The jury returned a verdict for the plaintiff for $1,250. The defendant made a motion for new trial on the general grounds and on seven special grounds, which the trial court denied. The exception here is to that order.

WORRILL, J.

1. The plaintiff in error contends that the evidence did not authorize the verdict for the plaintiff because there was no evidence that Getchell was authorized to make a contract with the plaintiff to cut the diversion ditch, and no evidence to authorize the jury to find that the plaintiff was justified in assuming that Getchell had any such authority; that Getchell, at most, was a special agent of the defendant employed to supervise the removal of the old spillway and to design a replacement spillway of timber or of concrete, and the cutting of the diversion ditch was no part of the removal of the old spillway; that the plaintiff should have known of the lack of Getchell's authority to have the diversion ditch cut; that, as to the $162 item, the plaintiff knew of the limitation of $1,000 to be expended by her in the removal of the old spillway and was bound by that knowledge; and that her payment to him of $1,112 fully discharged her obligation to him on account of the removal of the old spillway.

These contentions are without merit, in that the evidence was sufficient to authorize the jury to find contrary thereto. While the evidence was in conflict on these issues, there was ample evidence that the plaintiff was justified in believing that the defendant's agent, Mr. Getchell, had authority from the defendant to have the diversion ditch cut. The plaintiff, JJ., F. Barnes, testified: "Right before Christmas, she (the defendant) came out there. She had been out there several times before that and I understood that she was going off on a trip, so she came out there a little before Christmas and Mr. Getchell, my brother, and Mr. Chavous came out there on the bank; . . and Mr. Getchell explained to her about putting the dam in and he told her the only way he could get this dam in there was to bypass this water around and she asked him, `How can you do that? How are you aiming on doing that?' He told her, `We will have to cut the dam.' She said, `I would rather not have the dam cut if it can be avoided but if it can't be avoided, I will leave it entirely up to you.'" On cross-examination, the plaintiff testified: "I was present with Miss Mustin and Mr. Getchell when the agreement was made for me to remove the spillway. I turned to Miss Mustin there after we made the agreement, and she said to me, `We will let you know the time,' after they had decided on the price and the labor and everything, and she said, `We will let you know.' I turned to Miss Mustin and I said to her, like this, trying to make some adjustment about taking the old spillway out. She said, `Mr. Barnes, don't ask me anything about it. Mr. Getchell is my agent and I don't know anything about it.' That was about the removal of the spillway. Part of it had reference to the construction of the new dam. I never heard anything about her authorizing Mr. Getchell to build a new dam at that time. As to whether there is a new dam there now, I didn't put it there. Miss Mustin said Mr. Getchell was her agent for the removal of the spillway. The building of the new spillway was mentioned at that time. I heard she wanted to get a price on a timber dam and a concrete dam. . . I do not recall Miss Mustin saying she had so many thousand dollars to put in the removing of the old spillway and putting in a new one. I didn't hear that. I wasn't there. No, I wasn't present when she was discussing how much she had. I did not hear her say she had $1,000 for removing the old spillway. She asked me what amount it was going to run, and I told her . . . it would run anywhere from $1,200 to $1,400, taking it out of there. I told her that, standing right there, and Mr. Getchell heard it. I told her, `We may get out cheaper than that, I don't know.' There was not anything mentioned about her having only $1,000, and when that was spent, the work was to stop. I might have been present when Mr. Getchell and Miss Mustin were discussing it, but I didn't hear her say it. I don't care what they say about my being there. I just know what I heard and what I didn't. If I was there, I wouldn't deny it a bit in the world. If I had heard it, I would tell you I heard it, but I didn't hear it." This evidence of the plaintiff was corroborated in one or more particulars by the testimony of Getchell and two other witnesses.

This evidence clearly authorized the verdict for the plaintiff on the theory that the defendant held Getchell out to the plaintiff as her agent who was fully in charge of whatever work was to be done in connection with the removal of the old spillway and its replacement, and certainly it authorized the jury to find that if Getchell thought, as a professional engineer in charge of the removal of the spillway and the designing of a replacement spillway, that the diversion of the water around the site was necessary or desirable, then he was authorized to have that job done, and that the plaintiff knew that this was the extent of his authority from the language used by the defendant in the plaintiff's presence. Under such circumstances, it really is immaterial whether Getchell was a special or a general agent in the technical sense of the words, but we think it is apparent that he was merely a special agent, but with authority as outlined above.

We need not cite authority for the proposition that, where there is any evidence to sustain the verdict, this court is without authority to interfere with the order of the trial judge in overruling the general grounds of the motion for new trial.

2. All of the special grounds of the motion for new trial complain of extracts from the charge of the court which, while admittedly correct abstractly, it is contended were not adjusted to the pleadings or the evidence in the case, because there was no proof of general agency in Getchell and no evidence that Getchell was authorized to employ the plaintiff in the diversion of the water; and because they authorized the jury to find that Getchell was a general agent and did not distinguish between a general agent and a special agent. As we have pointed out in the ruling in division one above, there was ample evidence to authorize the jury to find that Getchell was authorized by the defendant to employ the plaintiff to divert the creek. It was not necessary under the evidence that the jury find that Getchell was a general agent of the defendant to enable them to find that he had this authority. The charge of the court was full and fair. The judge charged the jury that, where an engineer is employed in connection with the supervision of work, he is an agent with special powers simply to do the engineering and superintend and direct the work, and as such agent he has no power to alter, amend, or make a new contract for his principal; that one dealing with an agent with limited authority (that is, a special agent) is bound at his peril to know exactly what authority the agent has; that, insofar as the preparation of plans is concerned, an engineer is an independent contractor; and that, if Getchell employed the plaintiff to divert the water to facilitate his preparation of plans for the new spillway or dam, then the plaintiff would not be authorized to recover. All of these propositions are contended for by the plaintiff in error in her brief before this court, and are recognized as correct statements of the law applicable to the issues raised by the evidence in this case. We cannot say as a matter of law that the charges complained of in the seven special grounds were not adjusted to the evidence in the case, but on the contrary they were not erroneous for any of the reasons assigned.

The trial court did not err in denying the motion for new trial as amended.

Judgment affirmed. Sutton, C. J., Gardner, P. J., Townsend and Carlisle, JJ., concur. Felton, J., dissents.

FELTON, J. dissenting.

I think that the court erred in charging in effect that, if the jury found that W. B. Getchell, a structural engineer, was made the general agent of the defendant for the removal of the spillway, the plaintiff could deal with him as a general agent for the diverting of the stream unless he was notified that the agency had been revoked. These were entirely separate and distinct projects as to both of which combined no general agency was proved, and the jury were not authorized to find that, if Getchell was a general agent as to the first project, the plaintiff could deal with him as such as to the second project unless the plaintiff was notified that the general agency had been revoked. The law charged would only be applicable where there was proof that there was a general agency as to both projects combined. I express no opinion on the general grounds.