Lester v. McIntosh

• Decision Date: 08 July 1897
• Citation: 29 S.E. 7,101 Ga. 675
• Parties: LESTER et al. v. McINTOSH.
• Court: Georgia Supreme Court

29 S.E. 7

101 Ga. 675

LESTER et al. v. McINTOSH.

Supreme Court of Georgia

July 8, 1897

Syllabus by the Court.

1. An action upon a promissory note payable to the order of a named person, with the word "president" written after his name in the note, is maintainable by such person in his individual capacity; nor does it matter that his name in the declaration is followed by the words "president of," and other words purporting to express the name of a corporation. Such an action is to be treated as one brought by the individual named.

2. Where the petition in a civil action is signed by an attorney at law, the person sued cannot set up as a defense that the action was brought "without the authority or direction" of the person named as plaintiff. The manner in which the right or authority of an attorney at law to bring an action may be inquired into is pointed out in section 4423 of the Civil Code.

3. Where an action is brought against indorsers of promissory notes, which are described in a paragraph of the plaintiff's petition, and in answer to this paragraph the defendants allege that they indorsed notes of like amount and add, "Whether or not the notes sued on are the ones which defendants indorsed, defendants do not know, and for that reason cannot answer," the allegations of such paragraph will be taken as true. There was no error in striking such an answer.

Error from city court of Atlanta; H. M. Reid, Judge.

Action by B. L. McIntosh, president of the South Atlanta Land Company, against J. F. Lester and others. Plaintiff had judgment, and defendants bring error. Affirmed.

Burton Smith, for plaintiffs in error.

Thos W. Latham, for defendant in error.

FISH J.

Suit was brought in the city court of Atlanta in the name of "B. L. McIntosh, president of the South Atlanta Land Company," against George E. Hoppie, as principal, and Burton Smith and J. F. Lester, as indorsers, upon two promissory notes, payable "to the order of B. L McIntosh, president." Smith and Lester pleaded that "there is a variance between the copy notes attached to plaintiff's declaration and the notes in the bill, in this: that the notes are payable to 'B. L. McIntosh, president,' and the declaration is in the name of 'B. L. McIntosh, president of the South Atlanta Land Company"'; that "plaintiff should not recover in this case because they have sued in the name of 'B. L. McIntosh, president South Atlanta Land Company,' and the notes in law are to be considered notes of B. L. McIntosh"; that "said suit is brought without the authority or direction of B. L. McIntosh, and he so informed defendant Burton Smith"; and that, "said notes being in law payable to B. L. McIntosh, and to him alone, no one is authorized to sue thereon." These pleas were stricken on demurrer, and defendants Smith and Lester excepted.

1. The word "president," written after the name of McIntosh, to whose order the notes were payable, was merely a descriptive term, and must be considered as meant simply for the purpose of identifying him, and not as indicating that the notes were payable to him in any official capacity. "An addition to a name or signature, as 'chairman,' 'president,' 'agent,' 'assignee,' 'executor,' is descriptio personæ." See And. Law Dict. Therefore, the notes were really payable to the order of McIntosh as an individual, and it was proper to treat the action as brought by him individually, notwithstanding his name in...