Russell v. Strain

• Decision Date: 10 July 1943
• Docket Number: 30151.
• Citation: 26 S.E.2d 460,69 Ga.App. 654
• Parties: RUSSELL v. STRAIN.
• Court: Georgia Court of Appeals

26 S.E.2d 460

69 Ga.App. 654

RUSSELL v. STRAIN.

No. 30151.

Court of Appeals of Georgia, Division No. 2.

July 10, 1943

Wright Willingham & Fullbright, of Rome, and Joe M. Lang, of Calhoun, for plaintiff in error.

R Carter Pittman, of Dalton, for defendant in error.

FELTON Judge.

Mrs Claude E. Russell brought this action against Willard Strain alleging: "2. That Willard Strain and A. L. Edwards were, on the 12th day of September, 1940, engaged in a partnership doing business under the name and style of A. L. Edwards Company. 3. That A. L. Edwards died on the 13th day of September, 1940.4. That Willard Strain thereafter, on February 21, 1941, purchased said business from the administrator of A. L. Edwards. 5. That the said Willard Strain has continuously since said date operated said business under the name of A. L. Edwards Company, although the said A. L. Edwards has been dead during said entire period of time since said purchase and was not, therefore, a member of said partnership. 6. That by reason of said continued operation of said business, the said Willard Strain has, under the law, incurred a penalty of $100 a day for each day that he has used the name of A. L. Edwards in said business and that said days amount to 553 days, and that by reason thereof said defendant is indebted to plaintiff in the sum of $55,300." The defendant filed general and special demurrers to the petition, and the exception here is to the judgment of the court sustaining the demurrers.

This case is brought under the provisions of Code, § 75-111, which provides: "No partnership may lawfully insert in its firm name or style the name of any individual not actually a partner, nor continue in such firm name or style the name of a retired partner. Each member of the firm violating this provision shall forfeit the sum of $100 for every day's violation, to be recovered by any person who may sue for the same."

We think the court properly sustained the demurrers to the petition. A partnership has been variously defined as "a contract of two or more competent persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss in certain proportions;" and "those persons are partners who contribute either property or money to carry on a joint business for the common benefit, and who own and share the profits thereof in certain proportions;" ...