
    Cave v. Loucee & Zimmer.
   Holden, J.

An agent for hire was sued by his principal for money of the latter which had come into the hands of the agent and had not been accounted for or paid to the principal. The agent pleaded in defense, that the money was stolen by another wdthout his fault, and that the loss was occasioned because of the manner in which the money was handled and cared for by him with the knowledge and consent and in accordance with the instructions of the principal. Held:

1. That the evidence was sufficient to authorize the court to submit to the jury the question as to whether or not an agent of the principal had authority to direct and did direct the agent sued to take the money sued' for to a certain room, and whether or not the former had authority to consent and did consent that the latter leave the money in a box in such room unguarded while he was at dinner, and whether or not the money was stolen by another during such absence; and it was error to fail to submit these questions to the jury.

2. If the loss .of the money resulted from the agent following authorized instructions of the principal, or from the doing of acts consented to by the principal or his authorized agent, the agent sued would • not he chargeable, with its loss. , . .

February 24, 1910.

Action for money had and received. Before Judge Boan. DeKalb superior court.

January 16, 1909.

Payne, Little & Jones and King & Spalding, for plaintiff in ertor. Tye, Peeples & Jordan, contra.

(a) If the agent exceeded or violated his instructions,. and his doing so occasioned the loss of the money, he would be liable. Civil Code, § 3004.

(&) The agent would also be liable if the money was stolen as a result of his failing to perform some duty with respect to its handling and cus- . tody which rested on him independently of the instructions, under which he was acting, if such failure on his part, under the circumstances, amounted to a failure to exercise ordinary care. Civil Code, § 3009; Frink v. Southern Express Co., 82 Ga., 33 (8 S. E. 862, 3 L. R. A. 482). Judgment reversed.

AU the Justices concur.  