Sullivan v. Federal Farm Mortgage Cor. , 65 Ga. App. 193 ( 1941 )

If the agent of the plaintiff conducting the sale stated to the defendants, as it appears from the uncontradicted evidence (the agent not having testified or denied the defendants' testimony), that the plaintiff would bid in the property for its value and not seek a deficiency judgment against the defendants, and the defendants relied upon this as alleged in their plea, as testified to by them, and if the agent when making the statements alleged was agent for the plaintiff and acting within the scope of his authority, the sale would be void as between the plaintiff and the defendants, as was held in this case, in passing on demurrer, in Sullivan v. Federal FarmMortgage Corporation, 62 Ga. App. 402, supra. If the sale was void as between the plaintiff and the defendants the purchase of the property by the plaintiff at the sale and its sale by the plaintiff to another amounted to a rescission of the contract, and released the defendants from further liability to the plaintiff on the notes given for the purchase-money of the property.

It is stated that when the plaintiff's agent made the alleged statement to the defendants with reference to the plaintiff's buying in the property and taking it in payment of the debt etc., he was not at the time agent for the plaintiff for the purpose of foreclosing the loan and conducting the sale, and that therefore in making the statements he was not acting as the authorized agent of the plaintiff and the plaintiff would not be bound thereby. Conceding that the agent at the time of making such statements was not the agent of the plaintiff to conduct the sale, he afterwards became the agent of the plaintiff to conduct the sale, and did conduct it as such agent, and conducted it after he had made the representations referred to to the defendants. It is immaterial whether the agent made these representations before he became in fact the agent or afterwards. The sale was conducted under such representations by him to the defendants. The effect of the representations when made by the agent, although they were made before the agency began, were continuing, and were in effect being made by him during the entire period from the time when he first uttered them until he conducted the sale. Such representations were in effect being made by him after his agency began. Such representations therefore were being made by the plaintiff through him at the time of the sale, and were binding upon the plaintiff.

I am of the opinion that the evidence demanded a verdict for the defendants, and that the court erred in directing the verdict for the plaintiff.