115 Ga. 147 | Ga. | 1902
E. L. Martin filed the following petition in the city court of Macon: “ E. L. Martin brings this petition against Bryan H. Edwards and Lewis A. Wood, both of said county of Bibb, and showeth the following facts: 1st. That the said Bryan H. Edwards and Lewis A. Wood are copartners, doing business under the firm name and style of B. H. Edwards. 2nd. On the 23rd day of November, 1899, your petitioner loaned to said firm one thousand dollars ($1,000.00) from said 23rd day of November, 1899, to the 1st day of March, 1900, to be used by said copartners in the firm business, which was that of manufacturing staves, barrels, boxes,, etc. 3rd. Your petitioner shows that said one thousand dollars, ($1,000.00) was used by said firm in said business, and said firm received the benefit thereof. 4th. At the time of making said loan said firm made a contract, a copy of which is hereto attached as a part of this declaration, with your petitioner, in which they agreed and undertook to pay back to your petitioner said sum of one thousand dollars ($1,000.00) by the first day of March, 1900, and one third of the net profits which should arise from said business, and guaranteed that one third of said net profit would amount to as much as eight per cent, per annum on the loan made to said firm by your petitioner as shown in said contract. 5th. Your petitioner showeth that said firm refuses to pay to your petitioner said sum of one thousand dollars ($1,000.00) and the eight per cent, interest due thereon, though often requested so to do. Wherefore petitioner prays that process issue, directed to said firm, B. H. Edwards, and to the members composing said firm, to wit: Bryan H. Edwards and Lewis A. Wood, requiring them to he and appear at the next city court to be held in and for said county, then and there to answer petitioner’s complaint.”
E. L. Martin (L. S.)
“ Signed, sealed, and delivered, B. H. Edwards (L. S.)
this Nov. 23rd, 1899. Witness, Hope Polhill.”
The written instrument in question begins with the recital that it is “ entered into by and between E. L. Martin, party of the first part, and Bryan H. Edwards, party of the second part.” Then, “Said Martin, upon his part, agrees to furnish said Edwards the sum of one thousand dollars,” and “ Said Edwards, upon Ms part, agrees to return to said Martin on the 1st day of March, 1900, said principal sum of one thousand dollars and to pay said Martin, for the use thereof, one third of the net profits of the business of the firm of said Edwards . . ; said Edwards guaranteeing that said one third of the net profits shall amount to at least the rate of per annum on said $1,000,” etc. Then follows a conveyance by “said Edwards ” to Martin of certain corded wood, to secure the payment of the loan, “ said Edwards ” warranting the title to the wood. With a single exception, there is not a word in the whole instrument which tends to indicate that it is not the individual contract of Bryan H. Edwards. That exception is the use of the word “ firm ” in the clause where “ said Edwards ” agrees to pay, for the use of the money, “one third of the net profits of the business of the firm of said Edwards.” The use of the word “firm,” in this connection and in this isolated instance, we do not think is sufficient to indicate that this is not the contract of Edwards individually, but is the contract of some undisclosed firm in which he was a partner. It would be very singular, indeed, if a written instrument of the length of the one under consideration, setting forth a contract between a lender and a borrower of money, were intended by the parties thereto to be a contract between the lender on the one side
Judgment reversed.