Bryant et al. vs. Booze.

notice of Booze's purchase, nor of the letter received by Bobo from Roberts, nor of Booze's reply accepting the offer therein made. Roberts lived two or three miles from Hartwell, and when he proposed to buy the land, told him that he wished to purchase it for witness and C. W. A. Bryant. Roberts said that Booze was trying to buy it, but did not state that he had received a letter from him. Roberts and witness went to town together. Separated when they arrived at Hartwell. Does not know whether Roberts went to the post-offie or not. Witness had bought the land before they went to town. Roberts said that he had recently offered to sell the land, through Bobo, to some one at a certain and definite price, but he did not say to whom. Witness was not the one referred to.

The jury found for the complainant. The defendants moved for a new trial upon the following grounds, to-wit:

1st. Because the verdict was contrary to law, equity, justice and evidence.

2d. Because the court erred in charging the jury as follows: "If you find from the evidence that the negotiations between the complainant and Roberts, if Roberts was authorized to sell the land, had reached the point that a proposition to sell by Roberts to Booze on certain terms, was made by letter, and accepted by Booze in writing, and the letter making the proposition to sell, was forwarded or sent by mail and the letter of Booze accepting the proposition was sent by mail, the bargain was closed when the letter accepting the proposition was put in the mail, and if at the time of procuring the deed, the defendants had notice of the rights of Booze, they will stand in the same place and condition of Roberts or those Roberts represented, and if the complainant offered to perform his part of the contract by paying the $550 00 and the taxes at the time and place mentioned in the agreement, or the letters of the parties, then the complainant is entitled to relief unless there is some legal or equitable reason why it should not be granted. In relation to contracts made on Sunday, if the contract is not a matter of necessity, benevolence or charity, and is of worldly matters purely, such as buying and selling land, the

Bryant et al. vs. Booze.

contract is void. If you find from the evidence that the proposition from Roberts to Booze was handed to Booze on Saturday evening and answered and accepted that evening, and the letter was mailed on Monday. The handing the letter to Bobo on Sunday to mail on Monday, would not make the contract a contract made on Sunday and vitiate the contract. If the letter was written on Sunday and mailed on Sunday, the contract would be void. If the letter was written on Sunday and delivered in the mail by Bobo, his agent for the purpose of taking the letter to the mail, on Monday, it would not be a Sunday contract."

3d. Because the court refused to give the following charge: "If T. F. E. Bryant did not buy the land for Briscoe and Clat Bryant, the rule of notice to agent being notice to principal, does not apply. If Briscoe bought the land himself, and not through T. F. E. Bryant, as agent, notice to T. F. E. Bryant would not be notice to him, unless the evidence shows that T. F. E. Bryant had communicated to him (Briscoe) the notice he had in regard to Booze having bought the land before he (Briscoe) bought it."

4th. Because the court erred in charging as follows: "If notice was given to T. F. E. Bryant while he was agent, if it is proved he was agent of defendants, it would be notice to defendants even if Bryant had ceased to be their agent before they purchased, whether Bryant had communicated it to defendants or not. If they purchased for themselves they are chargeable with notice to Bryant, if he was their agent, if he received notice while he was agent. Any notice to Bryant after he ceased to be agent would not affect defendants. Notice to the agent is notice to the principal."

5th. Because the court erred in charging the jury as follows: "Any notice is sufficient, or, in other words amounts to, constructive notice, which would excite apprehensions in ordinary minds, and prompt inquiry into the actual condition. of things; and information for such purpose may be communicated by a person whether he had personal knowledge of the fact or be specially authorized to speak or not, provided

Bryant et al. vs. Booze.

it be given by such a man and in such terms as would induce a person of ordinary prudence to inquire into the matter."

6th. Because, when the letter from F, S. Roberts to Willis Bobo, bearing date June 14th, 1873, was offered and read in evidence on the trial of said case, defendants' counsel objected to the memorandum, "mailed 19th, received Saturday, 28th, answered Monday, June 30th," at the bottom of the first page of said letter, being read in evidence, the same being in the hand-writing of Joel Branham, jr., one of complainant's counsel. Said Joel Branham, jr., stated that said memorandum was in his hand-writing, and made by him some time after said letter was received by said complainant, and that he would erase the same from said letter before the jury should retire to consider of their verdict. Said defendants' counsel relied on this statement, but he failed or omitted to erase said memorandum from said letter, and allowed the same to remain on the said letter that was taken out by the said jury as evidence in said case, as a part thereof. Relying on said statement of said Joel Branham, jr., to erase said memorandum, defendants' counsel paid no furthr attention to the original letter, and used and referred to the copy of said letter set out in the bill in the consideration and argument of said case.

In support of this ground, an affidavit was filed, showing that defendants' counsel did not know that the memorandum went out with the jury unerased, and that they relied on complainant's counsel to erase the same.

The motion was overruled, and defendants excepted.

DABNEY & FOUCHE, for plaintiff in error.

SMITH & BRANHAM, for defendant.

BLECKLEY, Judge.

Booze filed a bill against Bryant and Briscoe to compel them to convey to him a certain tract of land. He based his right on a contract made by letter, which he alleged he had

'Bryant et al. vs. Booze.

concluded for the purchase of the land, and of which, he alleged, they had notice when they purchased and took a conveyance from the same party. Notice was denied, and, moreover his contract was assailed as invalid because made on Sunday. The jury found for him, and the court decreed the conveyance prayed for, on condition of his paying into the clerk's office the amount fixed by his contract as purchase money. The record shows that this payment was made within the time prescribed by the decree.

1. Upon the charges in the bill, there can be no doubt that the complainant was within a well known principle of equity jurisprudence when he invoked the interposition of that court to prevent his adversaries from holding on to a title which they acquired with notice of his prior purchase. They, on such a state of facts, would occupy the place of their vendor, and would have to respond to a demand for specific performance, for him or with him. For this position early and late authorities are both abundant: Fry on Sp. Per., 57, 58; 1 Story's Eq., section 396.

2. And the notice, to charge them, need not be actual nor amount to full knowledge. Information, from whatever source derived, which would excite apprehension in an ordinary mind and prompt a person of average prudence to make inquiry, would be sufficient. Nor need the notice be proved by direct and positive evidence; it may be shown by facts. and circumstances. And the jury are at liberty to believe the notice existed, notwithstanding it may be positively denied by the testimony of the interested parties. In this case they do deny it; but their denial does not negative the facts that environed them; and from these facts the jury could have formed a very rational opinion that they either did know, or ought to have known, that Booze had outstripped them in making a contract of purchase. There was enough in sight to put them on inquiry. If they failed to inquire, they are in the same situation as if they had received the notice, which they doubtless would have received if they had ventured to ask a question. The means of information were

Bryant et al. vs. Booze.

at hand. The law would hold them only to resort to such sources of information as were reasonably accessible; it would not impose on them extreme diligence, but ordinary diligence; and not even that, until they had first seen or heard something to awaken apprehension. Perhaps rumor, apparently well founded, might be enough for that, under some peculiar circumstances, though it is not, of itself, notice or a badge of fraud: 8 Georgia, 258. In this case, however, the jury might well have found there was more than rumor to prompt inquiry. There was a very suspicious activity immediately after Bobo communicated to Bryant's brother the fact of Booze's purchase: 1 Story's Eq., sections 399, 400a.

3. Notice to an agent is notice to the principal: Code, sec. 2200. The court's charge on this subject was sufficiently accurate for the purposes of the present case. The evidence does not point to any notice that reached the alleged agent before his agency was created or after it ceased. If he was agent at all, he was most probably such when he received the information which is relied upon as notice to him. There is nothing to show the discontinuance of his agency, if indeed he was agent, except that one of the principals, at last, after the agent became aware of Booze's contract, stepped in and made the purchase in person. It is contended that, on account of this last mentioned fact, the doctrine of notice to agents does not apply to the case at all. But it will be remembered that this alleged agent, either for himself as principal, or for some one else, had, for some time, been opening the way for a purchase of the land. If Bryant and Briscoe were his principals, (and that was a question for the jury,) they only followed up the opening which he had made or formed. The evidence shows that he was in conference with them shortly before the purchase was effected, and there is nothing to indicate that they had ever, up to that last interview, taken any part, in person, in the efforts at negotiation. He was the brother of one of them, and the circumstances make it altogether probable, to say nothing of the express admission of the fact by the latter, that he represented them.