52 Ga. App. 578 | Ga. Ct. App. | 1936
Lead Opinion
“South Georgia Motors, a partnership composed of E. T. Bailey and C. H. Taylor,” brought trover against Elizabeth Mobley, to recover an automobile. By her answer the defendant put the plaintiff on proof of every allegation of the petition, and pleaded in substance that she had paid $100 on the purchase-price of the automobile; that the plaintiff had a contract retaining title to the automobile; that the trover action “constituted in law a rescission of the contract,” and the plaintiff was bound to restore to the defendant said $100; and that the “plaintiff has no right or authority to maintain the suit, . . nor to recover therein.” This answer was amended by averring in effect, that, because of the failure of the partnership to comply with the act of 1929 (Ga. L. 1929, p. 233; Code of 1933, § 106-301), “the plaintiff has no right either to maintain its action or to recover thereon.” The court directed a verdict for the defendant. The plaintiff moved for a new trial, which was granted, and the defendant excepted.
The act approved August 15, 1929 (just cited) declares that “it shall be unlawful for any person, persons, or partnership to carry on, conduct, or transact any business in this State under an assumed, fictitious, or trade-name, or under any other designation, name, or style, other than the real name or names of the
E. T. Bailey testified in effect that the contract was originally for $266, which had been reduced by a payment of $50; that before suit was filed “we made demand on Mrs. Mobley for the surrender of this automobile on several occasions, and she refused to give the car or pay the money;” that “South Georgia Motors was a trade-name or fictitious name under which E. T. Bailey and C. H. Taylor did business in 1933;” that South Georgia Motors was “dealing in new and used automobiles and selling them;” and that the reasonable value of that automobile for rent or hire was $1 per day. The plaintiff introduced in evidence the contract retaining title to the automobile, which named “South Georgia Motors” as the “seller,” and provided that “title to said car shall remain in seller until all amounts due hereunder are fully paid.” The defendant introduced evidence that the plaintiff had failed to comply with the requirements of the act of 1929, and that the automobile was worth about $200 when suit was brought, and about $10 a month for rent.
We deem it unnecessary to set out the evidence in full, because the controlling question presented by all the grounds of the motion for a new trial is the effect of the failure of the members of “ South Georgia Motors” to comply with the requirements of the act of 1929; the^ evidence being conclusive and uncontradicted that when the sale was made, the retention-title contract taken, and the action instituted, there had been an entire failure on the part of the plaintiff to comply with that act. In Dunn & McCarthy Inc. v. Pinkston, 179 Ga. 31 (175 S. E. 4), “James A. Pinkston, trading in the name of Pinkston Company,” sued out an attachment against Dunn & McCarthy Inc. The declaration averred in substance that
Judgment reversed.
Concurrence Opinion
concurring specially. Under the decisions of the Supreme Court cited in the opinion, I concur in the judgment of reversal. In my opinion, under the act no contract made in a fictitious name, which has not been recorded in compliance with the act, is enforceable, and the retention of the title in this case necessarily depending on the contract, an action in trover will not lie in favor of the South Georgia Motors, a fictitious unre