1. The lease contract denominated the lessee as "Texas International Enterprises, Sam Evans, principal owner” and was executed "Texas International Enterprises by Sam Evans, prin.”
Counsel for appellee has propounded the unquestioned rule that parol evidence cannot be received to contradict, vary or materially affect, by way of explanation, a written contract.
Rogers v. Atkinson,
Like all general rules, however, there are exceptions and qualifications. With regard to Code § 4-401, while it is the general rule that a signature with the added word "administrator” or "executor” will ordinarily be treated as that of one in his individual capacity, the added word being generally merely descriptio personae, this is not an inflexible rule where the context makes it clear that it is signed in representative capacity although the added word is not as administrator or as executor.
Fisher v. Pair,
Parol is admissible to explain an ambiguity in a writing. Code § 38-502. Where there is a written contract, not under seal and not containing a so-called integration
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or "entire agreement” clause, parol is admissible to show the capacity in which one signed such agreement.
Tollison-Davenport Co. v. Carr,
"Parol evidence to show the capacity in which a person signed an instrument is admissible; it does not contradict the writing but simply explains the transaction.”
Maxwell v. Tucker,
In
Chambliss v. Hall,
"The form in which the agent acts is immaterial; if the principal’s name is disclosed, and the agent professes to act for him, it will be held to be the act of the principal.” Code § 4-304. In
Raleigh &c. R. Co. v. Pullman Co.,
The instant case also involves a problem of whether there was a nonexistent principal within the meaning of Code § 4-410 (Ga. L. 1955, pp. 346, 347) in which eventuality the contract is void and the agent renders himself individually liable.
Brown-Wright Hotel Supply Corp. v. Bagen,
Code Ann. § 22-1401 et seq. (Ga. L. 1968, p. 565) proscribes the transaction of business by a foreign corporation without a certificate of authority subject to numerous exceptions in Code Ann. § 22-1401 (b) (Ga. L. 1968, pp. 565, 707; 1969, pp. 152, 201). There are also certain penalties imposed, see Code Ann. § 22-1421 (Ga. L. 1968, pp. 565, 722; 1969, pp. 152, 196, 197), and the corporation may not maintain a suit in this state while it is not certified though it is not prevented from defending an action brought against it.
In brief, the law denies it certain rights and privileges but does not deny its existence. Hence, the fact that T.I.E. was unauthorized within the meaning of the Georgia Business Corporation Code would not mean that the defendant was acting for a nonexistent principal.
In the case sub judice the language used to describe the lessee does not square with the terms found to be only descriptio personae under Code § 4-401. Instead, "Texas International Enterprises, Sam Evans, principal owner” is patently ambiguous. Thus, parol evidence was admissible to explain the capacity in which the defendant signed and it was error to exclude such evidence.
2. Since the case must be retried we find that the evidence as to notice of attorney fees was sufficient and the trial judge’s ruling in this regard was not clearly erroneous under CPA § 52 (Code Ann. § 81A-152; Ga. L. 1969, pp. 645, 646; 1970, pp. 170, 171).
Judgment reversed.