123 Ga. 686 | Ga. | 1905
(After stating the facts.) The general rule-with reference to holding an undisclosed principal liable upon the contract of his agent is thus stated in the Civil Code, § 3024: “ If an agent, fails to disclose his principal, yet, when discovered, the person dealing with the agent may go directly upon the principal, under the contract, unless the principal shall have-previously accounted and settled with the agent.” This is a codification of the law as it stood prior to the original Code of 1863, and is not an innovation resulting from legislative enactment. In Lenney v. Finley, 118 Ga. 718, it was held that “The rule that an undisclosed principal shall stand liable for the contract of his agent does not apply when the contract is under seal. Accordingly, a lease under seal, executed by an agent as-lessee in bis individual name, and which does not purport to-be executed on behalf of the principal, is not binding upon the latter, although it appears from extrinsic evidence that the lessee was the general agent to conduct a busiuess for his principal, and that the premises were leased to be used in such business.” We are asked to review and reverse this decision; but the court declines to change the ruling then made. An examination of the authorities cited in the opinion will show that-it was not without foundation. In Merchants Bank v. Central Bank, 1 Ga. 418, it was said: “In the execution of instruments under seal, by an agent, the general rule is, that it must-purport, upon its face, to be the contract of the principal, and.
It is further contended that a note under seal does not fall within this rule. At common law a note under seal was unknown. Such an instrument more nearly approximated a “ single bond.” Broom’s Common Law (9th ed.) 272, 484; Sivell v. Hogan, 119 Ga. 170. It is unnecessary to discuss the exact status of a sealed note. In Albertson v. Holloway, 16 Ga. 377, its nature was considered, and it was held that a plea of failure of consideration could be made to a suit based on it. In other cases there have been intimations that a presumption of a consideration arose from the presence of a seal, but that it might be rebutted. See Neil v. Bunn, 58 Ga. 583; Simms v. Lide, 94 Ga. 553. In Weaver v. Cosby, 109 Ga. 310, Mr. Justice Lewis said that an instrument then before the court, being under seal, “ raised a strong presumption of law ” that it was founded upon a consideration. In Sivell v. Hogan, 119 Ga. 167, 169-170, the opinion was strongly expressed, although no direct ruling‘was made, that a seal raises a conclusive presumption of the existence of a consideration at the time the contract was entered into, but not that it has not since failed, either wholly or partially; and accordingly that want of consideration can not be pleaded, but failure of consideration may be. Whether the presumption thus raised is disputable or conclusive, the fact of being under seal gives to the note a character which it would not have otherwise. Moreover, the statute of limitations in regard to a note under seal and one
3. It is contended, however, that whether the plaintiff can recover on the note or not, she has a cause of action against the defendant aside from the note,J under the facts alleged. The case of Farrar v. Lee, 10 N. Y. App. Div. 130, was very similar to that now under consideration. It is there said, “That the liability rested entirely upon the bond, in which any preliminary contract was merged; that, as the tond was signed by Tanner [the agent] in his own name, and not as agent for Lee [the principal], it was not competent to transfer by parol evidence, or in any other way, from Tanner to Lee, the obligation which Tanner had assumed personally.” In the case of Lenney v. Finley, supra, it was contended that if the concealed principal was not liable on the contract of lease by reason of its being under seal, nevertheless, having occupied the premises and used them for the purpose of conducting business, she was liable to the plaintiff. . This contention was denied by the court. In the case of Maddox v. Wilson, 91 Ga. 39, no opinion was. written. The third headnote appears to conflict with the ruling here made. The decision was made by two Justices, and not by a full tench; and was disapproved in Lenney v. Finley, supra. Under the allegations of the petition-the trial court committed no error in sustaining the demurrer.
Judgment affirmed.