Partridge v. Hollinshead

105 Ga. 278 | Ga. | 1898

Little, J.

1. On the call of this case, the defendant in error submitted a motion to dismiss the writ of error, on the1 .ground, among others, that, notwithstanding the bill of exceptions was sued out to the grant of a nonsuit, the evidence was not brought up in the bill of exceptions, but was only .set out in the transcript of the record; and contended that under the law, -the evidence should have been embodied in the bill of exceptions, .and. that there was no authority for bringing it up otherwise in this class of cases. While it is true that by the provisions of section 4253 of the Code of 1882, it was declared that “The brief of evidence on motion for new trial, filed and approved .according to law, is hereby declared to be a part of the record of the case to which it applies, and need not, except by reference ■thereto, be embodied in the bill of exceptions,” it was, prior to "the passage of the act of 1889, which will be hereafter referred to, held by this court that, under the 10th rule of court, which provides: “A brief of the oral and a copy of the written testimony in the case shall be incorporated in the bill of exceptions, ■or be attached thereto as an exhibit, when presented to the judge for his certificate, in which latter case it shall be identified as true by the signature of the judge thereupon,” in all cases where no motion for a new trial was made, the brief of evidence should be embodied in the bill of exceptions, or attached thereto .and properly identified by the signature of the judge. Mann v. Archer, 69 Ga. 767; Hightower v. Flanders, 69 Ga. 772; McMillan v. Davis, 71 Ga. 866; Hodges & Van Duzer v. Roberts, 79 Ga. 212. However, under the provisions of the act of 1889, ,as codified in sections 5528 and 5529 of the Civil Code, the rule :.above referred to has been modified. By paragraph 1 of section 5528 it is provided: “If the case is not one in which a judgment on a motion for new trial is to be reviewed, the plaintiff in error shall plainly and specifically set forth the errors alleged to have been committed, and shall incorporate in the bill of ex■ceptions a brief of so much of the written and oral evidence as is material to a clear understanding of the errors complained of,” etc.; while section 5529 provides: “If the plaintiff in error -shall so elect, he may have such brief of so much of the evidence .as is necessary to a clear understanding of the errors complained -of, approved by the judge and made a. part of the record and sent - up by the clerk as a part thereof, rather than have the same in■corporated in the bill of exceptions.” So that, under the provisions of this act, it is optional with the plaintiff in error whether he will embody the evidence in the bill of exceptions, -or attach the same thereto and have it properly identified, as required under the former practice; or whether he will have such brief approved by the judge, and made a part of the record and •.sent up by the clerk as such. In the present case the plaintiff in error pursued the latter method, and the motion to dismiss •can not be sustained.

2. Contracts may be so framed as to leave it uncertain ' whether the agent meant to contract as agent or to make him•;self personally liable. In such a case, the intention and under-.-standing of the parties, as shown by the evidence of the contract, "must govern. If an agent engages expressly in his own name to pay a sum of money or perform other obligations, he is per•■sonally responsible on such engagement, although he describes ■ himself as agent, and is duly authorized to enter into such an .■engagement for his principal. If he uses his own name and not -the name of his principal, he is prima facie personally liable, . and the fact that he uses the word “agent” after his name will -.not alter the case xmless the wording of the contract shows that it was intended that the principal should be bound. Clark on ■Contracts, 139, and authorities cited. If it. does not appear from the instrument that it is intended to be the act of the -principal, the .agent will be personally liable, and the addition ■fo his name of his title of office, or his representative character, -will not' shield him from liability. 1 Am. & Eng. Enc. E. 387; Cleveland v. Stewart, 3 Kelly, 283.

In the case of Nall v. Farmers’ Warehouse Co., 95 Ga. 770,it was held: “Where certain persons, intending to act for and “on behalf of others, do in fact, in the execution of a written agreement for the rent of a warehouse, contract, not only for and on behalf of their several principals, but also each for and on behalf of himself, they thus bind themselves personally to-the performance of the covenants therein stated; all of the parties are principals,” etc. In the present case, it appears that there was a written contract entered into between “G. W. Partridge of the first part, and T. E. Hollinshead, N. E. Mc-Brayer, T. P. Harmon, and B. S. Wright, building committee of the Lincoln County Institute, of the second part.” It was undertaken by this agreement that the plaintiff in error should deliver to the parties of the second part, or their legal representatives, a certain quantity of lumber at stated times and places, within a given period, in payment for which it was-stipulated: “Said parties of the second part agree to haul said lumber from the mill . . and contract to pay said Partridge for the framing, weather-boarding, and such lumber as is necessary to hull in said building, by November 10th, 1894. They fur- ■ ther agree to pay the balance of said bill as soon as balance of - lumber . . is delivered in schoolhouse yard . . Said lumber is not considered to be delivered until received by said parties of second part at said Partridge’s mill.” This agreement was signed by Partridge, Hollinshead, Wright, and Harmon, the three last' being designated as “building committee.” This was a direct agreement on the part of these defendants to purchase said lumber and to pay for the same, and, as we have seen, the addition to their names of “building committee” does not relieve them from personal liability. It was the manifest intention, as gathered from this contract, that these parties individually undertook to pay for the lumber.

The court erred in granting the nonsuit, and the judgment is ■ - Reversed..

All the Justices concurring.