Hill v. Armour Fertilizer Works

• Decision Date: 19 September 1917
• Docket Number: 8426.
• Citation: 93 S.E. 511,21 Ga.App. 45
• Parties: HILL v. ARMOUR FERTILIZER WORKS.
• Court: Georgia Court of Appeals

93 S.E. 511

21 Ga.App. 45

HILL v. ARMOUR FERTILIZER WORKS.

No. 8426.

Court of Appeals of Georgia, Second Division

September 19, 1917

Syllabus by the Court.

If a court of competent jurisdiction, in dismissing a suit on demurrer, necessarily decides upon the merits of the case the decision, as between the same parties and upon the same subject-matter, may be pleaded in bar of another suit. Fain et al. v. Hughes et al., 108 Ga. 537, 33 S.E 1012; Black v. Black, 27 Ga. 45; Gray v Gray, 34 Ga. 499. But where a former suit was brought in a name which did not import either a natural person, a corporation, or a partnership, and in which the character of the plaintiff's entity was not shown, and where on review of that case this court held that the demurrer pointing out this defect should have been sustained, and that for the reason indicated the suit was a mere nullity (Hill v Armour Fertilizer Works, 14 Ga.App. 106, 80 S.E. 294) this does not amount to a former adjudication of the merits of the case, so as to bar another suit brought by the same plaintiff as a corporation against the same defendant, based upon the same claim.

Where one submits to another a contract of employment, whereby the former agrees to ship goods to the other as his salesman on commission, with the stipulation that the latter is to guarantee the purchase price of all goods shipped, by giving to the employer his note in the amount of the purchase price thereof, and where the agreement contains a provision that it is made subject to the approval of the home office of the employer, the contract does not ordinarily become operative until the condition as to acceptance has been complied with. But where, without notice of such formal acceptance, the salesman and guarantor proceeds to order out goods under the contract, and the goods are shipped by the employer as directed, and the note covering and guaranteeing the purchase price as provided by the contract is actually made and delivered, the contract of guaranty will be considered as complete and executed, and, upon a suit upon the note so given, the maker will not be permitted to avoid the same by reason of the employer's failure to furnish the formal notice of acceptance under the original contract.

The fact that a portion of the amount covered by the note represented the purchase price of goods sold by the agent to persons residing beyond the limits of the territory contemplated by...