11469, 11470 | Ga. Ct. App. | Nov 11, 1920
Dissenting Opinion
dissenting. This is a suit against G. Bingham Bache, the petition alleging that he executed the contract sued upon. If the contract is his, either as a matter of law or upon its proof as a fact, then the petition alleges a cause of action
If tested by the signature alone, it clearly is his individual act, since the word “ distributor,” added after his signature, is merely descriptio personae. He does not, in signing, purport to execute the contract even as an agent. Nowhere in the instrument is the Olds Motor Works obligated to perform anything under the contract. The contract can not, therefore, demand the construction that it is the contract of the Olds Motor Works through the defendant as its agent, but, on the other hand, would seem to demand the construction that it is the individual contract of the defendant. If, however, it does not demand this latter construction, but even reasonably authorizes it, it is then a question of fact to be supported by extrinsic evidence as to whose obligation it is. Merchants Bank of Macon v. Central Bank of Georgia, 1 Ga. 418 (44 Am. Dec. 665); 1 Mechem on Agency (2d ed.), § 1150; 1 Am. & Eng. Ency. of Law (2d ed.), 1054.
Lead Opinion
(After stating the foregoing facts.) Were it permissible for us to speculate on general principles as to whether in our opinion a purchaser would more likely buy a car from the manufacturer or from a local or State dealer, we might perhaps very reasonably incline to the latter proposition as being possibly the more usual and customary practice. Such speculation, however, lies beyond our sphere. This is a suit on a contract, 'and contracts must be taken' according to the language actually used, and, where unambiguous, it is the duty of courts to thus construe them. All acts of corporations are performed through agents and servants; their contracts are necessarily thus executed. The contract in this case was signed, not by. Bache, or by Bache as dealer, but by Bache as “distributor,” which term would of itself denote agency. And while this of itself, would amount to nothing more than descriptio personse, it is different where the terms of the contract clearly show for whom he was thus acting. In this case the writing would clearly seem to mean that Bache holds himself out as the distributing agent of a named manufacturer with authority to accept orders for it, and that he in such capacity is recognized by the manufacturer, but with definite limitations upon his authority to bind it by warranty. The contract shows on its face that the purchaser simply gave to the distributor of a named manufacturer an order for a car, which by the express terms of the agreement was not to be filled by the named distributor, but was to be transmitted to the manufacturer, to be executed by it.
Judgment on mam bill of exceptions affirmed; cross-bill dismissed.