Horton v. Smith

12 Ga. App. 232 | Ga. Ct. App. | 1913

Pottle, J.

1. Suit was brought against a partnership alleged to have been composed of Horton and Burns, upon a promissory note, a copy of which was attached to the petition, from which it appeared that the note had been signed “Burns and Horton.” An amendment was offered, striking the word “and” in the signature and substituting therefor the words “his mark,” so _ that the signature as amended should, read his “Burns x Horton.” mark Held: This amendment did not introduce either a new cause of action or a new party defendant; nor was the petition as amended subject to demurrer. Since it appeared from the petition that the intention was to sue the partnership, and that the signature as amended was made by one of the partners, and was intended as the signature'of the partnership, the material question was whether one of the partners signed the note, and, in so doing, intended to bind the partnership. The petition sufficiently alleged that he did. Words & Phrases, vol. 7, p. 6509; Horton v. Murden, 117 Ga. 72 (43 S. E. 786).

Decided February 4, 1913.

Complaint; from city court of Floyd county—Judge Eeece. September 23, 1912.

Harris, Harris & Harris, for plaintiffs in error. M. B. Eubanks, contra.

2. “Where a note is given in the name of a partnership by one member of the firm, after dissolution, and such note is accepted by a creditor of the firm in renewal or exchange oí a partnership note due to such creditor (which note is surrendered), such new note binds the firm, notwithstanding the dissolution, if the creditor when he received the new note had no notice that it was signed after the firm’s dissolution.” Bank of Covington v. Cammon, 133 Ga. 779 (2), (67 S. E. 83). See, also, Ennis v. Williams, 30 Ga. 691; Bush v. McCarty Co., 127 Ga. 308 (56 S. E. 430, 9 Ann. Cas. 240).

3. The evidence demanded a verdict in favor of the plaintiff.

Judgment affirmed.