Whatever one may do himself may be done by an agent, except such personal trusts in which special confidence is placed on the skill, discretion, or judgment of the person called in to act; so an agent may not delegate his authority to another unless specially empowered to do so.
(Orig. Code 1863, § 2158; Code 1868, § 2153; Code 1873, § 2179; Code 1882, § 2179; Civil Code 1895, § 2999; Civil Code 1910, § 3571; Code 1933, § 4-103.)
Law reviews.- For article, "The Georgia Power of Attorney Act," see 24 Ga. St. B.J. 20 (Dec. 2018).
JUDICIAL DECISIONSANALYSIS
General Consideration
Scope of authority.
- There is conferred upon an agent no greater power than that possessed by the principal. Tippins v. Cobb County Parking Auth., 213 Ga. 685, 100 S.E.2d 893 (1957).
Agent for sale of personalty has authority only to sell. Berger v. Noble, 81 Ga. App. 34, 57 S.E.2d 844 (1950).
Agent may enter credit binding payee.
- If payee of a note could make an entry of credit and that act would bind the payee, the payee could make it by an agent and be bound thereby. Green v. Juhan, 66 Ga. 531 (1881).
Waiver of prepayment of insurance premiums.
- An insurance company by the company's proper officers may waive a condition requiring prepayment of the premium, and whatever the company might do itself it would be permitted to do by an agent. Penn Mut. Life Ins. Co. v. Blount, 33 Ga. App. 642, 127 S.E. 892, cert. denied, 33 Ga. App. 829 (1925).
Principal may be bound by agent's admission.
- Admission made through an agent, during the existence and in pursuance of the agent's power, was no less evidence against the principal than if made by the principal in person, under former Civil Code 1910, §§ 3571 and 5779. William-Hester Marble Co. v. Walton, 22 Ga. App. 433, 96 S.E. 269 (1918).
Wife may appoint husband her general agent.
- A married woman may enter into any contract by an agent that the law will permit her to make in person, and she may appoint her husband as her general agent and in such case will be bound by an agreement made in her behalf by the husband acting within the scope of his authority, to the same extent as if the agreement were made by the wife by and for herself independently of such agent. Hutcheson v. May, 40 Ga. App. 746, 151 S.E. 657 (1930).
Husband may bind wife by contract to purchase execution against husband.
- Where a married woman entered into a contract for the purpose of an execution against her husband and executed notes therefor, she could not repudiate the transaction upon the ground that the agreement was an undertaking by her to pay the debt of her husband, and the fact that in all negotiations prior to the final making of the contract the wife was represented by the husband, and that she did not in fact understand the true consideration of the agreement, would not operate to relieve her from liability, where the true intent and purpose was not to bind her for the debt of her husband, but to make a bona fide purchase of the execution and the husband in so representing his wife was acting within the scope of his authority as her agent. Hutcheson v. May, 40 Ga. App. 746, 151 S.E. 657 (1930).
After a husband, after conveying lands to another to secure a debt, made a second conveyance of the same lands to his wife to secure an additional debt and, while both of these conveyances were outstanding, entered upon the lands and manufactured lumber from timber standing thereon, the husband was not without an apparent interest in the lumber; and where a judgment creditor caused an execution against the husband to be levied upon such lumber as the husband's property, the wife, in order to obtain a release of the property and to protect her interest therein, could purchase the execution; and a contract made by her for that purpose, if free from fraud or undue influence, would be binding upon her. Hutcheson v. May, 40 Ga. App. 746, 151 S.E. 657 (1930).
Transfer of securities to agent.- The power of attorney conveyed by husband to wife expressly conveyed upon wife the authority to effect the transfer of securities from him to her. Wheeless v. Gelzer, 780 F. Supp. 1373 (N.D. Ga. 1991).
When debtor files bankruptcy, control over property passes to court.- Possession of property of debtor by agent for debtor presents no question of jurisdiction over property by bankruptcy court, because upon filing of bankruptcy petition, control which debtor possessed over debtor's property in hands of debtor's agent passes to bankruptcy court and title thereto passes to bankruptcy court and the court's trustee. Scroggins v. Powell, Goldstein, Frazer & Murphy (In re Kaleidoscope, Inc.), 15 Bankr. 232 (Bankr. N.D. Ga. 1981), rev'd on other grounds, 25 Bankr. 729 (N.D. Ga. 1982).
Cited in Weathers Bros. Transf. Co. v. Jarrell, 72 Ga. App. 317, 33 S.E.2d 805 (1945); Huggins v. Atlanta Tile & Marble Co., 98 Ga. App. 597, 106 S.E.2d 191 (1958); Dairyland Ins. Co. v. Gay, 193 Ga. App. 65, 386 S.E.2d 909 (1989).
Delegation of Authority
Restriction states common law.
- Inhibition against an agent delegating an agent's power as contained in this section is only declaratory of the common law and is but another form of expression for the maxim "delegata potestas non potest delegari." Springfield Fire & Marine Ins. Co. v. Price, 132 Ga. 687, 64 S.E. 1074 (1909).
"Personal trusts" arise out of fiduciary relation.
- "Personal trusts" referred to in this section are those arising out of a fiduciary relation, such as the relation between principal and agent and the like. Council v. Teal, 122 Ga. 61, 49 S.E. 806 (1905).
To contract to drill artesian well does not involve any personal trust, any more than to contract to dig a ditch or to erect a building, and in the absence of a stipulation to the contrary, the contractor may perform the contract obligations through agents, being accountable, of course, for the manner in which the agents prosecute the work. Council v. Teal, 122 Ga. 61, 49 S.E. 806 (1905).
Test as to whether contract involves relation of personal confidence is whether the party conferring the rights must necessarily have intended the rights to be exercised only by the individual upon whom the rights were actually conferred. Adair v. Smith, 23 Ga. 290, 98 S.E. 224 (1919).
Parties may agree contract not personal in nature.
- Even though the subject matter of a contract might of itself in a sense indicate that it was intended to be personal in the contract's nature, the parties thereto can nevertheless by the express terms of the agreement manifest a different purpose and intent. Adair v. Smith, 23 Ga. App. 290, 98 S.E. 224 (1919).
Section strictly applied as to public officers.
- No agent may delegate authority unless the agent is specially empowered to do so and, for reasons that are entirely obvious, this rule is usually given a very strict, if not a literal, application in the case of public officers. Deariso v. Mobley, 38 Ga. App. 313, 143 S.E. 915, cert. denied, 38 Ga. App. 816 (1928).
Defendant's claim that an investigator employed by the district attorney was bound by the ethical and legal standards that prohibited the district attorney from testifying before the grand jury was rejected as an agent could not delegate the agent's authority unless specifically empowered to do so and as the discretionary powers conferred upon public agents could not be delegated without authorization; further, an unlicensed individual could not practice law and a witness could not testify to hearsay other than in specified cases. Hall v. State, 273 Ga. App. 203, 614 S.E.2d 844 (2005).
Section prevents assignment of position.
- Agreement between the state and R, whereby R was appointed special tax investigator and was to receive commission on such back ad valorem taxes due the state as should be collected through R's efforts, could not have been assigned. Roberts v. Allen, 31 Ga. App. 660, 122 S.E. 86, cert. denied, 31 Ga. App. 812 (1924).
Assignability of choses in action.
- Former Civil Code 1910, § 3571 is a recognized exception to the rule stated in former Civil Code 1910, §§ 3653 through 3655, namely, that all choses in action arising upon contract and involving property rights may be assigned. Adair v. Smith, 23 Ga. App. 290, 98 S.E. 224 (1919).
Employment of workers.
- This section has no application to the contractual relation existing between the parties to an agreement under the terms of which one of them obligates oneself to accomplish a given task, not alone or in person, but through workers in one's employ. Council v. Teal, 122 Ga. 61, 49 S.E. 806 (1905).
Insurance company agent may employ clerks.
- Agent of an insurance company, fully authorized to make out and issue policies of insurance, has power to employ clerks in the ordinary business of the agency. Springfield Fire & Marine Ins. Co. v. Price, 132 Ga. 687, 64 S.E. 1074 (1909).
Subagents for telegraph operators.
- Rule laid down in the case of Central of Ga. Ry. v. Price, 106 Ga. 176, 32 S.E. 77, 71 Am. St. R. 246, 43 L.R.A. 402 (1898), deciding under this section that a conductor would have no authority to employ a subagent to act for the railroad company in caring for a passenger, would certainly apply equally to a telegraph operator in the service of such company. Western & Atl. R.R. v. Jackson, 21 Ga. App. 50, 93 S.E. 547 (1917).
Station agent may not delegate authority to employ servants to an inferior agent since it involves discretion and judgment. Mathis v. Western & Atl. R.R., 35 Ga. App. 672, 134 S.E. 793 (1926) (railroad not liable for death of person employed by inferior agent).
Agent may not by indirection delegate authority to operate farms to another, unless specially empowered to do so, under this section. Hargrove v. Armour Fertilizer Works, 31 Ga. App. 465, 120 S.E. 800 (1923).
Authority to sell article.
- An agent, whose authority is limited to the sale of an article, may not delegate this authority to another, without being empowered so to do. Berger v. Noble, 81 Ga. App. 34, 57 S.E.2d 844 (1950).
If authority exceeded, no title passes.
- If an agent who is authorized to sell trucks but not authorized to delegate such authority to another undertakes to exceed one's authority by delivering a truck to an automobile dealer to sell, the agent was acting without authority and no title to the truck passed. Berger v. Noble, 81 Ga. App. 34, 57 S.E.2d 844 (1950).
Owner not estopped by having given possession to agent.
- Purchaser of personal property from one who is not the true owner acquires no title against the true owner by reason of the bona fides of purchase, when one purchased from one who is an utter stranger to the title and who can convey no title, except when there may be some statute otherwise, or when the true owner, upon some principle of estoppel, would be precluded from asserting title. However, the mere permission by the owner for the agent to have possession of the truck would not be such an act as would estop the owner. Berger v. Noble, 81 Ga. App. 34, 57 S.E.2d 844 (1950).
Relationship of master and servant cannot be imposed upon person without consent, express or implied; hence, the defendant was free to select the defendant's own servant and was responsible for the acts of the defendant's servant within the scope of the defendant's employment, but the defendant was not responsible for the act of an assistant permitted without authority to act for the defendant. Carter v. Bishop, 209 Ga. 919, 76 S.E.2d 784 (1953).
Liability of principal for acts of subagent.
- If a servant, who is employed to do certain work for a master, employs another person to assist the servant, the master is liable for the negligence of the assistant only when the servant had authority, express or implied, to employ the assistant or when the act of employment is ratified by the master. Carter v. Bishop, 209 Ga. 919, 76 S.E.2d 784 (1953).
Unless a primary agent, expressly or impliedly authorized by the principal as owner of an automobile to drive it on the business of the owner, is personally expressly or impliedly authorized to appoint a subagent for that purpose, the owner will not be liable for the negligence of the latter. Carter v. Bishop, 209 Ga. 919, 76 S.E.2d 784 (1953).
If one who is employed to drive a motor vehicle, without the consent of and against specific instructions of the master, engages a substitute driver, the master is not liable for the negligence of the substitute driver unless the act of the servant employing the substitute driver is ratified by the master. Carter v. Bishop, 209 Ga. 919, 76 S.E.2d 784 (1953); Burke County Bd. of Educ. v. Raley, 104 Ga. App. 717, 123 S.E.2d 272 (1961).
Family purpose doctrine.
- Parent who keeps and maintains an automobile for the use, comfort, pleasure, and convenience of the family is responsible for injuries resulting from the negligence of a third person whom the family member permits to drive, if the family member remains in the automobile and retains control, authority, and direction over the automobile, and if the automobile is being used in furtherance of the purposes of a family car. This liability created by the family car doctrine is applicable notwithstanding the fact that the parent has expressly instructed the family member not to permit third persons to drive the car. Phillips v. Dixon, 236 Ga. 271, 223 S.E.2d 678 (1976).
RESEARCH REFERENCES
Am. Jur. 2d.
- 3 Am. Jur. 2d, Agency, §§ 2, 146 et seq.
C.J.S.- 2A C.J.S., Agency, §§ 141, 143, 254, 255, 281.
ALR.
- Authority of agent to assent to account stated, 2 A.L.R. 71.
Validity of rule or stipulation making messenger in employment of telegraph company agent of sender in taking message to office for transmission, 9 A.L.R. 1235.
Validity of factor's pledge of his principal's property, 14 A.L.R. 423.
Liability of undisclosed principal on sealed contract, 32 A.L.R. 162.
Death as revoking power of attorney to transfer corporate stock, 40 A.L.R. 1004.
Character as holder in due course of concern which takes paper from its dealers or agents, 61 A.L.R. 694.
Implied or ostensible authority of officer, agent, or employee to engage medical services, 71 A.L.R. 638.
Authority of claim agent as regards terms or condition of settlement, 87 A.L.R. 1277.
Necessity of alleging fact of agency in declaring upon contract made by party through agent, 89 A.L.R. 895.
Power of sale as including power to mortgage, 92 A.L.R. 882.
Agent's authority to collect or receive payment as including implied, apparent, or ostensible authority to do so before maturity of obligations, 100 A.L.R. 389.
Authority of agent to endorse and transfer commercial paper, 37 A.L.R.2d 453.
Authority of agent to borrow money for principal, 55 A.L.R.2d 1215.
Agent's authority to execute warrant of attorney to confess judgment against principal, 92 A.L.R.2d 952.
Discharge of debtor who makes payment by delivering checks payable to creditor to latter's agent, where agent forges creditor's signature and absconds with proceeds, 49 A.L.R.3d 843.
Principal's liability for punitive damages because of false arrest or imprisonment, or malicious prosecution, by agent or employee, 93 A.L.R.3d 826.
Tort liability of public schools and institutions of higher learning for accidents associated with transportation of students, 23 A.L.R.5th 1.