130 Ga. 807 | Ga. | 1908
(After stating the facts.)
The plaintiff could maintain the suit in its name, as it alleged that it owned the property and its president, Lyle, acted for it in making the contract, and the purchase-price under the contract is due to the .plaintiff. Atlanta & W. P. R. Co. v. Texas Grate Co., 81 Ga. 602 (9 S. E. 600).
According to the allegations of the petition, the plaintiff, a corporation, owned a tract of land in Alabama. Its president, acting for it, sold the land for $20,000 to E. E. Watson, acting for and in behalf of himself and the other defendants, who became the owners and obtained the possession, use, and benefit of the property under their purchase thus made. $5,000 was paid to Lyle by Watson on the purchase-price, which amount was furnished by the defendant for the purpose of being so paid. Notes were taken for the balance of the purchase-money, signed by Watson, trustee, and payable to L)de, president. These notes were dated at Birmingham, Alabama, and payable at a bank in that city. A deed was made in Georgia, in the usual form, by L}de as president to AVatson as trustee. Lyle was acting for and in behalf of the plaintiff in the transaction, and Watson was acting for and in behalf of himself and the other defendants, but it was not known to the plaintiff at the time of the transaction that Watson was acting as agent for and in behalf of the defendants. Can this suit on the original consideration out
It is true, according to the weight of authority, that a suit can not be maintained on the original consideration where at the time of the making of the contract the parties entered into a contract under seal, because the simple contract was merged into the higher contract under seal. This has also been held to be the law by decisions of this court in the cases of Lenney v. Finley and Van Dyke v. Van Dyke, cited supra. In the former’case there was a lease contract under seal, and it was held that no suit could be maintained outside of the contract against an undisclosed principal for use and occupation. In the latter case it was held that a note under seal could not be disregarded and an undisclosed principal held liable for the money loaned. Suit can be maintained on the original transaction, outside of the written instrument, where
In deciding this case, we have had in mind the rule that the lex loci controls as to the validity, form, force; and effect of a contract, in the absence of stipulations in the contract indicating a contrary intention of the parties, and that the lex fori governs as to
The major portion of the amendment which the court refused to allow the plaintiff to make consisted of allegations which were substantially embodied in the petition as it stood upon the hearing; however, the statement in this amendment that the plaintiff had the custody of the notes and was ready and able to surrender and cancel them was a proper averment in view of the fact that Watson, who signed the notes, was one of the defendants against whom it was sought to recover upon the original consideration, and on this account the court should have allowed the amendment.
The court committed error in refusing the amendment, and in sustaining the demurrer of the defendant Howard and dismissing the petition as to him; and its judgment is
Reversed.
The case before us presents an effort to change a suit on notes into a suit on a contract out of which the notes arose. This can not be done either by one amendment or two. Amending “on the installment plan” is no more proper for that purpose than a single sweeping amendment. See Norris v. Pollard, 75 Ga. 358 (5) ; Head v. Marietta Guano Co., 124 Ga. 983 (5), (53 S. E. 676).
As originally brought, it can hardly be doubted that the suit was on the notes. It showed that Watson, “acting as agent and trustee” for the defendants, bought land, paid some cash, and gave notes for the balance of the purchase-money, bearing seven per cent, interest, he signing them as trustee; that at the time the plaintiff did not know that Watson was acting as agent for defendants, but has since discovered the undisclosed principals; and that there was due a specified amount as principal, interest, and attorney’s fees, “upon the obligation before stated to pay ten per cent, as 'attorney’s fees in case of default in the payment of said notes.” No other obligation to pay attorney’s fees appears except that contained in the notes, and the claim thus set up was necessarily a suit on the notes. Wood v. Martin, 115 Ga. 147 (41 S. E. 490). Thus, then, the suit as originally brought was on the notes. -By amendment, certain allegations were added and parts;
1 am authorized to state that Presiding Justice Evans concurs in the views herein set forth.