Radio Station WTMP v. Zior, 38312
| Decision Date | 16 June 1960 |
| Docket Number | No. 38312,No. 1,38312,1 |
| Citation | 115 S.E.2d 627,102 Ga.App. 38 |
| Parties | RADIO STATION WTMP v. Ann ZIOR |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where the plaintiff failed to make out a prima facie case of individual liability against the defendant named in his action, the court did not err in granting a nonsuit.
Radio Station WTMP filed its petition in the Civil Court of Fulton County against Ann Zior, seeking to recover the sum of $705 allegedly due under an advertising contract. The petition was amended by adding to the name of the defendant the words 'doing business as Ejax Oil Stabilizer.' The case proceeded to trial and at the close of plaintiff's evidence the court granted the defendant's motion for a nonsuit. Error is assigned on this judgment.
A. Mims Wilkinson, Jr., Atlanta, for plaintiff in error.
Dunaway, Embry & Shelfer, Wm. S. Shelfer, Atlanta, for defendant in error.
'An instrument signed by one as agent, trustee, guardian, administrator, executor, or the like, without more, shall be the individual undertaking of the maker, such words being generally words of description.' Code § 4-401. A complete discussion of the origin of this section appears in McRitchie v. Atlanta Trust Co., 170 Ga. 296, 302, 152 S.E. 834, 838. Correlative to this provision is the principle that 'where in the body or on the face of the instrument the agency is distinctly specified and the principal indicated, and the contract is substantially in the name of such principal, the latter, and not the agent, will be regarded as the maker of the instrument.' See Harp v. First Nat. Bank of Reynolds, 173 Ga. 768(3), 161 S.E. 355, and cit.
In the present case the action is against 'Ann Zior doing business as Ejax Oil Stabilizer.' The evidence discloses that the advertising contract was signed as follows: 'Ann Zior, Sec.-Tres. authorized agent for Ejax Oil Stabilizer.' The addition of the name of the purported principal to the agent's signature here is prima facie sufficient to take this case beyond the purview of Code § 4-401 and bring it within the principle stated in Harp v. First Nat. Bank of Reynolds, supra. While the language in Dorsey v. Rankin, 43 Ga.App. 12(2), 157 S.E. 876, might seem to indicate otherwise, a close reading of that decision reveals that it deals with a situation in which the contracting party was not disclosed on the face of the contract, which was signed by J. R. Smith as 'agent for owners' without specific designation of a principal.
The plaintiff...
To continue reading
Request your trial
-
Southern Bell Tel. and Tel. Co. v. Coastal Transmission Service, Inc., 65684
...the name of such principal, the latter, and not the agent, will be regarded as the maker of the instrument.' " Radio Station WTMP v. Zior, 102 Ga.App. 38-39, 115 S.E.2d 627 (1960). Barrow did not purport to bind himself individually on the contract but executed the document only in his repr......
-
Ben Hill Ready Mix Concrete Co. v. Prather
...the contract was of that corporation. See Raleigh R. Co. v. Pullman Co., 122 Ga. 700(9), 50 S.E. 1008 (1905); Radio Station WTMP v. Zior, 102 Ga.App. 38, 115 S.E.2d 627 (1960). In a lien foreclosure the materialman must distinguish between an individual and his corporation and bring suit ag......