Opinion
32431.
DECIDED MAY 21, 1949.
Complaint; from Fulton Civil Court — W. G. Grant judge pro hac vice. January 28, 1949.
Miller Head, for plaintiff.
Hal Lindsay, Joseph E. Buffington, Edward E. Dorsey, Travers Hill, for defendant.
1. The overruling of the general demurrer to the petition adjudicated that the contract here involved was definite and capable of enforcement, and in the absence of an exception thereto became the law of the case.
2. The authority to execute an instrument required by the statute of frauds to be in writing must also be in writing.
3. While all of the partners are living, a partner can convey by deed only his individual interest.
4. Oral ratification alone is not sufficient to give validity to the unauthorized execution of a contract for the sale of real property.
5. A copy is not admissible in evidence when the original is not accounted for.
6. Unless provided therein, a power of attorney has no retroactive effect. The direction of a verdict was correct and none of the court's rulings require a reversal.
DECIDED MAY 21, 1949.
Hubert Realty Company, a partnership, sued George Bland Jr. for $280, allegedly due by reason of the breach of a contract to purchase real estate. The petition alleged that the defendant deposited $500 earnest money with the plaintiffs; that half of it was paid to the owner of the property, and the plaintiffs' brokers retained the other half; that a balance of $365 was due the plaintiffs, $280 for commissions and $85 for title investigation; that the commissions were due by reason of a provision of the contract of sale attached to the petition, obligating the defendant to pay commissions in the event he, as buyer, breached the contract; that the purchase-price of the property was $11,000, $2,000 cash and "$9,000.00 to be first mortgage held by the seller payable over a period of 15 years at 5% interest." The photostatic copy of the contract attached to the petition showed the seller to be Mrs. Sara Wilson Dobes, and was signed "Mrs. Sara Wilson Dobes, by Wm. L. Dobes." The defendant filed a general demurrer to the petition, and filed an answer and counterclaim. The material allegations of the petition were denied. The answer further alleged that the defendant did not execute an original of the contract attached to the petition; that the defendant did sign a contract identical with the one just mentioned, but the seller therein was Dr. William L. Dobes; that the defendant signed two originals of the contract, and that the plaintiffs, who represented that they were agents of the proposed seller, promised that they would have both of the originals signed by the proposed seller and return to the defendant one of the originals bearing the signature of the proposed seller; that neither of the originals was signed by any purported seller in the defendant's presence, and the defendant had no knowledge other than that which he obtained from the original contract which the plaintiffs delivered to him; that the plaintiffs delivered him a contract signed by Dr. William L. Dobes as seller, and that the defendant believed he was dealing with Dr. Dobes; that the defendant had no knowledge that Mrs. Sara Wilson Dobes was the true owner of the property or that her name was signed by her or for her; and that the plaintiffs converted the $500 earnest money to their own use by retaining one-half and paying one-half to Mrs. Dobes. There are other allegations in the answer which it is not necessary to set forth, as they are subject-matter of demurrers and not answer or counterclaim. Judgment was prayed by the defendant for $500 and interest. The defendant amended his answer and counterclaim by alleging that the contract sued on was executed by William L. Dobes as an agent for Mrs. Sara Wilson Dobes, as seller without authority in writing to do so. The plaintiffs demurred to the answer and counterclaim generally and specially. It is not necessary to set forth the special demurrers, as will be shown in the opinion. The general demurrer to the petition was overruled, and no exceptions were filed. The demurrers to the answer and counterclaim were overruled, and the plaintiffs filed exceptions pendente lite. On the trial of the case the judge directed a verdict for the defendant for $500 and interest. The plaintiffs except to the overruling of their motion for a new trial and to the overruling of the demurrers to the answer and counterclaim.
1. While the contract was void and unenforceable because the provision for the first mortgage of $9000 did not definitely provide how the payments were to be made, whether monthly, annually, semi-annually, or quarterly ( Crawford v. Williford, 145 Ga. 550, 89 S.E. 488), the overruling of the general demurrer to the petition necessarily adjudicated that the contract was definite and enforceable, and the ruling, unexcepted to, became the law of the case.
2. Whatever may have been wrong with the defendant's answer and counterclaim, it alleged that the plaintiffs received his money under a contract which was executed without written authority from Mrs. Dobes and had paid one-half of it to Mrs. Dobes and retained the other half. The contract does not provide that any of the earnest money be paid to a seller even if a buyer defaults. It provides that it be retained by the broker to apply on commissions. The suggestion that it be divided between seller and broker is printed matter on the back of the contract and is not a part of the contract in fact or by reference within the contract, and the suggestion is not followed by any signatures or anything else which would incorporate it into the contract. Authority to execute a contract required by the statute of frauds to be in writing must also be in writing. Byrd v. Piha, 165 Ga. 397 ( 141 S.E. 48); Code, § 4-105; Blanchard Calhoun Realty Co. v. Comer, 185 Ga. 448 ( 195 S.E. 420); Radcliffe v. Jones, 46 Ga. App. 33 ( 166 S.E. 450). A mere effort to ratify orally, as shown by the evidence, will not suffice. McCalla v. American Freehold c. Co., 90 Ga. 113 ( 15 S.E. 687); Palmer v. McNatt, 97 Ga. 435 ( 25 S.E. 406); McMichen v. Brown, 10 Ga. App. 506 ( 73 S.E. 691). The evidence demanded the verdict for the defendant because, assuming that the contract sued on was valid and binding on its face, the plaintiffs' rights must stand or fall on the contract set up by them, and there was no evidence that the husband had authority in writing to execute the contract nor that it was ratified in writing nor that the defendant had notice thereof and by his subsequent conduct was estopped to deny the validity of the same.
3. The contention that the property was partnership property and that Dr. Dobes could contract for the sale thereof is without merit. Conceding, but by no means deciding, that the property was partnership property, there was no purported contract in the name of the partnership. Only Mrs. Dobes' name was signed as principal. Dr. Dobes undertook to sign only as agent. Furthermore, a partner, while all other partners are living, can only convey title by deed to his own individual interest in the partnership property. Baker v. Middlebrooks, 81 Ga. 491 ( 8 S.E. 320), and cases cited. See also Anderson v. Goodwin, 125 Ga. 663 ( 54 S.E. 679); Cottle v. Harrold, Johnson Co., 72 Ga. 830; Bank of Southwestern Georgia v. McGarrah, 120 Ga. 944 ( 48 S.E. 393); First Nat. Bank of Gainesville v. Cody, 93 Ga. 127, 155 ( 19 S.E. 831); Emmett Co. v. Dekle, 132 Ga. 593 ( 64 S.E. 682). If a partner cannot legally deed more than his own interest under such circumstances, it follows that he cannot legally contract to do so.
4. It was not error to refuse to admit testimony of Mrs. Dobes to the effect that she orally ratified the execution of the contract. It was not proposed by the plaintiffs to prove that the defendant knew of the ratification and committed any act which would have estopped him from contending that there was no ratification. See cases cited in division two of this opinion.
5. It was not error to refuse to admit in evidence a copy of an original power of attorney from Mrs. Dobes to Dr. Dobes, when there was no effort to account for the original or to show why it was not produced. There was no evidence that it had been lost or destroyed.
6. The power of attorney executed subsequently to the execution of the contract here involved did not have a retroactive effect, in the absence of such intention expressed therein as to the contract. There is no merit in any of the other grounds of the amended motion.
The court did not commit harmful error in overruling the demurrers to the answer and counterclaim, and did not err in overruling the motion for a new trial.
Judgment affirmed. Sutton, C. J., and Parker, J., concur.