70 Ga. 385 | Ga. | 1883
This suit was brought originally against husband and wife. The husband’s name was stricken, and the suit proceeded against Mrs. Miller alone. It was founded on an open account for goods sold, and a verdict was returned for the plaintiffs for the amount of the account. Whereupon Mrs. Miller moved for a new trial; and error is assigned here on the denial of that motion.
On page 239 (10th division) Judge Nisbet, in delivering the opinion of the court, says : “ If an agent buy in his own name, without disclosing his principal, and the seller subsequently discover that the purchase was in fact made for another, he may, at his choice, look for payment either to the agent or the principal, and that too, notwithstanding the title has been made to the agent, and he debited with the account. * * * On the other hand, if at the time of the sale, the seller knows, not only the person who is nominally dealing with him is not principal but agent, and also knows who the principal really is, and, notwithstanding all the knowledge, chooses to make the agent his debtor, dealing with him and him alone, the seller must be taken to have abandoned his recourse against the principal, and cannot afterwards, upon failure of the agent, turn round and charge the principal, having once made his election at the time when he had the power of choosing between the one and the other.” Citing 3 Douglass,
That case rules and controls this. In that, it was sought to charge a trust estate, and not only was the agent or trustee charged and debited with the goods, but his individual promissory note was taken in liquidation of the debt, yet the trust estate was held liable.
Judgment affirmed.