114 Ga. 156 | Ga. | 1901
This was a suit originally brought in a justice’s court by the Chicago Building and Manufacturing Company against H. H. Summerour, to recover from the defendant a sum subscribed by him for the purpose of building a butter and cheese factory at Norcross, Georgia. The case was by consent appealed to the superior court. Attached to the summons was a copy of a contract entered into by the plaintiff company with the defendant and his associates. From this contract it appeared that these persons had subscribed a certain sum of money for the purpose of building a butter and cheese factory at the place named, and that they had agreed, when the entire amount necessary for the purpose indicated had been subscribed, to incorporate themselves under the laws of this State. The defendant filed a plea setting up that the subscribers to the stock had been incorporated, pursuant to the contract, under the name and style of the Norcross Butter and Cheese Manufacturing Company, and that after their incorporation the plaintiff’s right of action for unpaid subscriptions must be asserted against the incorporated company. The plaintiff thereupon offered to amend the original summons by inserting the name of the Norcross Butter and Cheese Manufacturing Company as plaintiff, suing for the use of the Chicago Building and Manufacturing Company. This amendment was allowed without objection from the defendant, so far as appears from the record. The defendant then demurred to the summons as amended, upon the grounds that no cause of action was set forth; that if the plaintiff had any cause of action at all, it was against the Norcross Butter and Cheese Manufacturing Company; and that, not having established any debt or claim against the Norcross Company, it could not proceed in its name against the defendant to collect any sum that may be due to such company.' The court sustained this demurrer and dismissed the case, and this ruling is assigned as error by the Norcross Butter and Cheese Manufacturing Company.
Under the contract attached to the summons, the defendant was originally hable to the Chicago Building and Manufacturing Company for the amount of his subscription. As soon, however, as the sübscribers were incorporated pursuant to the contract, the liability of the defendant was shifted to the new company, and this corporation became liable to the Chicago Building and Manufacturing Company for the amount of the unpaid subscriptions. In other
Judgment reversed.