113 Ga. 957 | Ga. | 1901
Kahn Brothers brought, in the city court of Atlanta, an action against Mrs. J. G. Gause and Mrs. J. Lynn Smith, as partners under the firm name set forth below, and W.S. Thomson as surety. There was an entry of service upon the firm and Mrs. Gause, showing personal service upon her, and an entry of non est inventus as to “ the defendant J. L. Smith.” It appears from the record that the initials “ J. G.” and “ J. L.” were those, respectively, ■of the husbands of the members of this partnership. The suit was predicated upon a written contract dated August 3,1896, and an account thereto attached. This contract recited that the parties thereto were “Kahn Bros., merchant tailors, of the first part, and Gause and Smith, agts. (J. G. Gause, J. Lynn Smith),of the second part, and W. S. Thomson, surety, of . . the third part.” It was signed thus: “Gause & Smith,agts. [Seal.] W. S.Thomson [Seal.]” It in substance stipulated that Kahn Bros, were to fill orders for clothing sent to them by Gause & Smith, and that Thomson was to guarantee payment for the goods shipped under such-orders. In the 1st paragraph of the plaintiff’s petition it was alleged : “ That Mrs. J. G. Gause and Mrs. J. Lynn Smith are partners doing business under the firm name of Gause & Smith, agents.” The third paragraph of the petition was as follows: “Your petitioner shows that, on the 3rd day of August, 1896, a contract was entered into between plaintiffs and said defendants Gause and Smith and W. S. Thomson, surety. A copy of said contract is hereto attached and marked ‘Exhibit A’ and made a part of this declaration.” The defendants Gause and Smith, agents, filed an answer which was stricken on demurrer, and to this they did not except. Thomson also filed an answer, in the 1st and 3d paragraphs of which he admitted, respectively, the truth of the allegations contained in the above-mentioned paragraphs of the petition. At the trial he tendered an amendment to his answer, striking the 1st and 3d paragraphs thereof and substituting for the same averments to the effect that the partnership which entered into the contract with Kahn Brothers was not composed of Mrs. Gause and Mrs. Smith, and that Thomson did not, in signing that instrument, undertake or intend to become surety for them. This amendment also undertook to set up divers reasons why, even upon the assumption
Judgment on main MU of exceptions reversed; on cross-hill affirmed.