Sapp v. Howe , 79 Ga. App. 1 ( 1949 )

Assuming that there was evidence authorizing the jury to find that there was a partnership as to the truck, the charge given was sufficient to cover the issues involved, in the absence of a request for further instructions. The court charged as follows: "In the event you do determine that N.C. Moore was the partner of B. Fred Howe, or was the agent of B. Fred Howe, then you would give consideration to certain principles of agency. In the event N.C. Moore was duly authorized to sell the truck by the plaintiff Howe, then, of course, the defendant would be authorized to negotiate a sale with N.C. Moore, and such sale would not constitute a wrongful conversion." The plaintiff in error contends that this charge was error, and that the failure to charge more fully on the law of partnership was error because, as he contends, if the truck had been partnership property, Moore could have sold it without authority from Howe. Neither assignment of error is meritorious, and if the case were to be reversed, the plaintiff in error would not get the instructions to the jury which he desires on another trial. The selling of trucks was not the business of the partnership, if there was a partnership and the truck was partnership property, and one partner cannot sell the assets of the partnership without the consent of the other or others except in the due course of business. 40 Am. Jur., Partnerships, § 180; L.R.A. 1918 A, 928. The charge stated the law applicable to the facts. If Moore sold the truck as agent for Howe, he had to have authority from Howe to do so. If the truck belonged to the partnership, Moore had to have authority from the partnership through both partners, which means that in such a case he was acting as agent of the partnership as principal, and the jury would not have had any instruction which would have benefited the plaintiff in error if the court had told them that, if Moore sold as a partner, the law of partnership applied rather than the law of agency.