Syllabus by the Court.
When
one person has sold and delivered goods to another, and the
detriments and benefits which constituted the consideration
of the contract between them have been suffered and received
and the transaction has thus become fixed as to the
reciprocal liabilities, a contract by a third person, not
originally bound, to pay the debt thus already pre-existing
and incurred by the purchaser is nudum pactum, unless
supported by some new consideration.
A note
under seal, and not on its face disclosing any principal for
whom the signers could be construed to be acting, is to be
taken as their individual act; and the words
"Pres." and "Secy.," following their
respective names, as mere descriptio personæ.
Error
from City Court of Atlanta; H. M. Reid, Judge.
Action
by the Southern Seating & Cabinet Company against J. Saul and
another. Judgment for plaintiff, and defendants bring error.
Reversed.
The
Southern Seating & Cabinet Company brought suit against J
Saul and Nathan Wolfe on three promissory notes, all of the
same tenor, except that one was due two months, one four
months, and one six months after date. It will be sufficient
to copy the material parts of only one of them, viz
"$250.00. Atlanta, Ga., Aug. 13, 1907. For value
received, two months after date, we promise to pay to the
order of Southern Seating & Cabinet Co. two hundred and fifty
dollars, without interest. The consideration of this and
other notes is the following described property: 705 #404
Body--116 #40 Ends 18 Donkey Division which we have received
of said Southern Seating & Cabinet Co. Nevertheless, it is
understood and agreed by and between us and the said Southern
Seating & Cabinet Co. that the title to the above-mentioned
property does not pass to us, and that until all said notes
are paid the title to the aforesaid property shall remain in
the said Southern Seating & Cabinet Co., who shall have the
right, in case of nonpayment at maturity of either of said
notes, without process of law, to enter and retake, and may
enter and retake, immediate possession of the said property
wherever it may be, and remove the same. *** the drawer and
indorsers agree to pay all reasonable attorney's fees for
collecting the same. J. Saul, Pres. Nathan F. Wolfe,
Secy."
The
defendants filed a plea as follows: "That at the time of
signing said notes J. Saul was the president of the
Congregation of Beth Israel and Nathan F. Wolfe was the
secretary of said Congregation. Said Congregation is a
corporation organized under the laws of the state of Georgia
for religious and charitable purposes. That on May 21, 1907
said Congregation of Beth Israel, through its purchasing
committee, to wit, J. Saul and L. Eplan, entered into an
agreement with the Southern Seating & Cabinet Company, of
Jackson, Tenn., for the purchase of a lot of seats and
benches to be used in the church building of said
Congregation of Beth Israel. The purchase price for said
benches agreed to be paid by said Congregation of Beth
Israel, through its purchasing committee, was the sum of
$1,000, of which $250 was to be paid cash when the goods were
placed in said church building. The balance of said payments
were to be in three equal payments, to wit, in 60 days and 4
and 6 months, without interest. Said contract was in writing,
and was executed between the Southern Seating & Cabinet
Company, of the first part, and J. Saul and L. Eplan,
purchasing committee of the Congregation of Beth Israel, of
the second part. Said contract further provided that the
Southern Seating & Cabinet Company should deliver and set up
the benches purchased, and upon their acceptance by the
Congregation were to be paid for by the Congregation as
follows: $250 in cash and the balance in three equal payments
in 60 days and 4 and 6 months, without interest. That when
said benches were shipped to Atlanta, and set up in the
church building of said Congregation of Beth Israel, the
representative of said plaintiff came to Atlanta with the
contract and three certain notes made out on forms provided
by said plaintiff, and, claiming to have fully performed its
part of the contract, called on said Congregation of Beth
Israel for the cash payment and for the three notes
representing the deferred payment, in pursuance of and in
accordance with the said contract. That said Congregation
thereupon made the cash payment and directed defendants, as
president and secretary of said Congregation, to sign the
notes tendered by said plaintiff. That defendants, in
accordance with the direction of said Congregation, and at
the request of said plaintiff, and as officers of said
Congregation, and in no other capacity, signed their names to
the said notes--J. Saul as president, and Nathan F. Wolfe as
Secretary. That at the time said notes were so signed by
defendants there was no promise on the part of defendants to
become personally liable for the obligation of said
Congregation. There was no demand made on the defendants by
said plaintiff that they should become personally liable, and
said notes, when signed by the defendants, were accepted by
said plaintiff as the obligation of said Congregation of Beth
Israel. That there was no consideration moving to the
defendants as individuals for signing said obligations, and
that as to defendants as individuals said...
