Watters v. Hertz

135 Ga. 817 | Ga. | 1911

Fish, C. J.

(After stating the facts.) The petition as amended consisted of two counts. We need be at no pains to show that a cause of action was set out as against Doss in the first count. See the next preceding case of Watters v. Hertz, ante, 814. The allegations of the amendment related exclusively to the liability of Watters. Did the first count set forth a cause .of action against Watters? We think not. As amended this count in effect alleged .that Watters purchased from Doss all of his interest, under his contract with the plaintiff, in and to the timber and cord-wood on the land in question, “thus succeeding to the rights of . ’. Doss under the terms of said contract, and being bound to fulfill all his obligations thereunder,” and that Watters “thereupon . . entered upon said lot of land and-cut therefrom the timber and cord-wood, and converted the same to his own use and b'enefit, and has failed to respond to petitioner in accordance with said contract.” These allegations as to the liability of Watters for the breach by Doss of his contract with the plaintiff are mere statements of a legal conclusion, and are evidently not sound; as it does not follow as a matter of law that because Watters purchased from Doss his interest under his contract with the plaintiff in the timber and cord-wood, he (Watters) thereby became bound to fulfill all of Doss’s obligations under his contract. Nor does the fact that Watters thereupon entered upon the land and cut therefrom the timber and cord-wood and converted it to his own use render him liable to the plaintiff on the contract between her and Doss.

The remaining question in the case is whether a cause of action was set out in the second count as against Watters. The contract under which it was sought to make him liable was not under seal; and it was alleged in this second count, that Doss, in entering into the contract with the plaintiff, was acting as agent for and in behalf of Watters, who was his undisclosed principal; that Watters, under and by virtue of the contract made in his behalf by his agent Doss, and having knowledge of all of its terms, entered upon the land and cut therefrom the timber and cord-wood for his own benefit; thus taking to himself all the advantages under the contract. Under these allegations, Watters was liable under the contract, and a cause of action was set out against him. The.points referred to in the brief of counsel for the plaintiffs in error are the same as those contained in their brief in the next preceding case of Watters v. Hertz, and need not here be further dealt with.

The two counts of the petition appear to be inconsistent. It is not clear how the-plaintiff can proceed in one count to obtain a judgment on the contract against one defendant as the principal, and in another count to obtain a judgment based on the same contract against anothér as an undisclosed principal of the first defendant. But the demurrer did not raise that question, and accordingly no decision of it is made.

Judgment affirmed.

All the Justices concur.