16964, 17030 | Ga. Ct. App. | Jun 18, 1926
Citizens National Bank of Washington, Georgia, the payee, brought suit against L. 0. Fortson and A. H. Jennings, as partners, upon two notes bearing this signature: “L. 0. Fortson.” The petition alleged that L. 0. Fortson and A. H. Jennings both signed the notes, and are indebted thereon under the firm name and style of “L. 0. Fortson,” they having composed the firm of “L. 0. Fortson,” and “having done business under said name and style, and' the notes sued on are evidences of a .partnership debt.” Jennings alone defended. The jury trying the case returned a verdict in his favor. The plaintiff made a motion for a new trial, containing the usual general grounds and a number of special grounds. -The special grounds complained only- of alleged errors in the charge of the court and of refusals of requests to charge. The motion was overruled. The following facts appeared without dispute upon the trial: A partnership at one time existed between Fortson and Jennings under the name stated. The partnership was dissolved before the notes now in question were executed. The notes were in renewal of debts incurred by the partnership before its dissolution and which had remained unpaid. The signature was affixed by L. 0. Fortson. Jennings was not present and had no part in the transaction. Nothing was said by Fortson at the time, nor before, as to whether he was affixing the signature of the partnership or of himself, nor as to whom he intended to bind. The transaction was solely between him and the bank’s cashier (who was also its president), who did not know the partnership, or any other than Fortson, in the transaction. Fortson did not testify. Some other issues were developed by the evidence, but, in our view of the case, the above is a full and complete statement of the controlling facts.
The name “L. 0. Fortson” imports an individual, and not a partnership. It is shown, however, to be the name both of an individual and of a partnership. But the signature of a partnership usually carries with it “by” or “per” and the name or initials of the person affixing it. One who signs merely his own name to a note is supposedly acting for himself, although it is known that he is a member of a partnership of the same name. Judged only by their face and the circumstances that they were signed by Fortson, and that he was a member of a partnership having the same name
But there is an additional reason why the plaintiff was not entitled to recover. The petition alleged that the notes were partnership contracts signed by both partners. See Buckner v. Lee, 8 Ga. 285 (2); Merchants & Farmers Bank v. Johnston, 130 Ga. 661 (61 S.E. 543" court="Ga." date_filed="1908-05-15" href="https://app.midpage.ai/document/merchants--farmers-bank-v-johnston-5576325?utm_source=webapp" opinion_id="5576325">61 S. E. 543, 17 L. R. A. (N S.) 969, 14 Ann. Cas. 546). But the evidence showed that they were signed only by the person whose name had been employed as the name of the partnership, not in the presence of the other partner, and that the plaintiff bank did not know the partnership or the other member in the transaction. The notes were under seal. Therefore, if the person signing them was acting as agent for the partnership, the partnership was undisclosed, and an undisclosed principal can not be held liable under a sealed contract signed by another. Lenney v. Finley, 118 Ga. 718 (45 S.E. 593" court="Ga." date_filed="1903-10-24" href="https://app.midpage.ai/document/butts-v-state-5572821?utm_source=webapp" opinion_id="5572821">45 S. E. 593); Pope v. Jennings, 34 Ga. App. 496 (130 S.E. 348" court="Ga. Ct. App." date_filed="1925-11-10" href="https://app.midpage.ai/document/pope-v-jennings-5617330?utm_source=webapp" opinion_id="5617330">130 S. E. 348). Our conclusion on the general grounds of the motion for new trial would probably have been different if the name of the partnership had not been the same as that of the .member, and if the notes had purported upon their face to have been made in behalf of the partnership instead of leaving it to extraneous proof as to whether they were intended as partnership or individual contracts. From what has been said, it is unnecessary to deal with the special grounds of the motion. If the judge erred in his charge to the jury, or in refusing the requests to charge, the plaintiff was not hurt. There was no error in refusing a new trial.
Judgment on main hill of exceptions affirmedj cross-hill dismissed.