Davis v. Citizens-Floyd Bank & Trust Co. , 37 Ga. App. 275 ( 1927 )

Bell, J.

The bank brought suit against John P. Davis and J. Olney Davis, as partners, upon a promissory note. John P. Davis alone defended, filing a plea of no partnership. The trial before the judge without a jury having resulted in a finding and judgment against him, he moved for a new trial on the general grounds only, and, the motion being refused, he excepted.

The evidence showed that with the knowledge and consent of his father, John P. Davis, and in the latter’s office, J. Olney Davis conducted an insurance business under the name of “John P. Davis Insurance Agency,” and that, acting within the scope of that enterprise and in that name, he executed the note sued on. The evidence also authorized the inference that the plaintiff payee accepted the note for value, relying upon the credit and responsibility of .John P. Davis, although believing, from representations of J. Olney Davis, that the two were partners. While the mere declarations of an alleged partner are not admissible to prove that he is the partner of another who denies- the existence of the partnership (see Shaw v. Jones, 133 Ga. 446 (4) (66 S. E. 240); Bender v. Hill, 30 Ga. App. 239 (117 S. E. 258), and the evidence here established without dispute that the partnership did not exist in fact, yet since the evidence warranted the inference that John P. Davis, by his conduct, had held himself out as being related, as a responsible party, in some capacity, to the business carried on under the name stated, and had permitted J. Olney Davis to pledge the credit of such business under 'ostensible authority to do so, John P. Davis could be held liable on the contract by one who extended credit on the faith of sirch relation and authority. In such circumstances he will be estopped to assert that the facts were not as they appeared to be, whether the person creating the debt did so' as an agent or as a partner. The real question is whether J. Olney Davis had apparent authority in any capacity to bind -his father. “When one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the- injury must bear the loss.” Civil Code (1910), § 4537. Where it appeared that such apparent authority existed, and that the plaintiff extended the credit on the faith thereof, the defendant is bound, although the authority did not exist in fact, and it is immaterial what the plaintiff may have believed as to the technical relation ont of which such authority proceeded. Even assuming that the putative status was that of principal and agent, and not, as the plaintiff believed, that of partners, the defendant can not complain that he was held as a partner, where he could have been held as an individual. Doody Co. v. Jeffcoat, 127 Ga. 301 (2) (56 S. E. 421); Waldrop v. Wolff; 114 Ga. 610 (6) (40 S. E. 830), and cit.

It was not necessary for the plaintiff to plead estoppel where, as here, it was brought forward by the evidence to combat an affirmative defense. Wright v. McCord, 113 Ga. 881 (2) (39 S. E. 510); Askew v. Amos, 147 Ga. 613 (95 S. E. 5). The court did not err in refusing a new trial.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.