Armed Forces Service Co. v. Petree, 19066
| Decision Date | 10 October 1955 |
| Docket Number | No. 19066,19066 |
| Citation | 211 Ga. 867,89 S.E.2d 486 |
| Parties | , 107 U.S.P.Q. 156 ARMED FORCES SERVICE COMPANY Inc., et al. v. Richard A. PETREE. |
| Court | Georgia Supreme Court |
T. B. Higdon, Atlanta, for plaintiff in error.
William F. Lozier, Atlanta, for defendant in error.
Syllabus Opinion by the Court.
Richard A. Petree filed suit against Armed Forces Service Company, Inc., a Georgia corporation, and T. B. Higdon, a resident of Georgia and one of the incorporators of the defendant corporation, seeking to enjoin the defendants from operating any business under the name of Armed Forces Service Company, Inc., and to cancel the charter of the defendant corporation. Certain named parties sought to intervene and their petition was allowed subject to objection. The defendant T. B. Higdon was later dismissed as a party defendant by the plaintiff. The contents of the petition filed by the plaintiff need not be fully set out here. It is sufficient to say that the petition alleges as follows: 'Petitioner alleges on information and belief that defendants have no organization under said charter.' There are other allegations seeking to set up the plaintiff's right to exclusive use of the name Armed Forces Service Company because of his prior use of said trade name, and to set out the defendant's bad faith and fraudulent intent in incorporating under the name Armed Forces Service Company, Inc. A demurrer to the petition was overruled. This ruling, along with other rulings with reference to the intervention and the answer and crossbill which, in the view we take of this case, need not be set out here, are assigned as error to this court. Held.
1. The controlling question in the instant case is whether or not the overruling of the general demurrer to the petition was error. We find upon an examination of the petition and demurrer thereto that the answer to this question is clearly in the affirmative. The petition seeks to enjoin the defendant corporation from using the name Armed Forces Service Company, Inc., in unfair competition with the business of the plaintiff. However, it is alleged that the defendant corporation has no organization under its charter. This means, of course, that the defendant corporation has not and can not enter into any business or do any act, whether in competition with the plaintiff or otherwise, because it is not authorized to do so under the law and has no officers or directors to act for it. A corporation can act only through and by its duly authorized officers. See Monroe...
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Looper v. Georgia, Southern & F. Ry. Co.
...of Athens v. Co-op Cab Co., 207 Ga. 505(2), 62 S.E.2d 906; Nottingham v. Elliott, 209 Ga. 481(3), 74 S.E.2d 93; Armed Forces Service Co. v. Petree, 211 Ga. 867(1), 89 S.E.2d 486, yet one is not required to await the infliction of the injury before seeking to prevent it by injunction. Indeed......
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...act but there must be some overt act resulting in irreparable or incalculable injury to the petitioner. Armed Forces Service Co. v. Petree, 211 Ga. 867(1), 89 S.E.2d 486. 'Mere allegations of speculative or contingent injuries, with nothing to show that they will in fact happen, do not requ......