Charles v. Valdosta Foundry & Machine Co. , 4 Ga. App. 733 ( 1908 )

Hill, C. J.

(After stating the foregoing facts.)

1, 2. The words “Yaldosta Foundry and Machine Company” import a corporation, and the court properly overruled the special demurrer based on the ground that there was no party plaintiff. Van Winkle Gin and Machine Works v. Mathews, 2 Ga. App. 249 (58 S. E. 396); Georgia Fire Asso. v. Borchardt, 123 Ga. 185 (51 S. E. 429); Holcomb v. Cable Co., 119 Ga. 466 (46 S. E. 671). Tlie amendment of the petition, therefore, setting out the real character of the plaintiff was unnecessary, unless it was denied that the plaintiff was a corporation and this denial was shown by proof. The amendment, however, was allowed the court; and the petition as amended showing that the plaintiff was in fact not a corporation, but was an assumed or trade name of an individual, the question made by the motion to dismiss the petition on the-ground that the suit was brought neither by a corporation, a partnership, nor a natural person, and that therefore there was no real party plaintiff, is necessary to be determined. The motion to dismiss, being in the nature of a general demurrer, admits the truth of the allegation that the Yaldosta Foundry and Machine Company was the trade name under which E. L. Thomas did business; so the question arises whether an individual can, in an assumed or trade name, bring a suit. It is well settled by frequent decisions-of the Supreme Court that no suit can be lawfully prosecuted save in the name of a plaintiff having a legal entity either as a natural or as an artificial person; in other words, that in every suit brought in this State there must be a real plaintiff and a real defendant. Anderson v. Brumby, 115 Ga. 649 (42 S. E. 77); W. & A. Railroad Co. v. Dalton Marble Works, 122 Ga. 774 (50 S. E. 978). The underlying purpose in requiring that there shall, be real parties to all litigation is, that there shall be some one upon whom the judgment of the court shall be effective. It is entirely competent for 'a person to assume any business name which he desires, except as prohibited by statute (see Civil Code, §2636), and all contracts made by him in that name shall be binding, and if he brings suit in that name he will be afterwardsestopped from denying the binding effect of any judgment in such suit; and the person who thus sues in a trade or business name can not, in his real name, be afterwards heard to dispute any judgment rendered in the case -in which he was a party plaintiff under' the assumed or trade name. Clark v. Wyche, 126 Ga. 24 (54 S. E. 909). Mr. Justice Atkinson, in the case just cited, says: “So-it is not so much the name, but the identity of the person who-causes the name to be employed, that is the main question.” And further, “If Mrs. Wyche under the assumed name [George Foundry and Machine Works]' caused the foreclosure proceeding to be instituted in that name, the proceeding, so far as she is concerned, would not be wanting in respect to a real party plaintiff, and she would, after judgment, be estopped to raise the point that the suit was not brought in the name of a natural person, a partnership, or a corporation. She is capable of suing. By her true name or whatever name she adopts, the suit will be sufficient to bind her whenever it appears that it is instituted at her instance. It is not a question of fictitious parties. The parties are real, one acting under an assumed name, but nevertheless a real party.” The foreclosure proceeding alluded to by the learned Justice was instituted by Mrs. Wyche under the assumed name of George Foundry and Machine Works, which was admitted to have been the name under which she conducted business, the mortgage being made to her in that name. Under a plea of recoupment a ver-, diet was obtained against the plaintiff, in excess of the amount sued for, and Mrs. Wyche subsequently contested the validity of this verdict and of the judgment obtained thereon, on the ground that there was no legal entity as a party plaintiff in the foreclosure suit, and that she, as an individual, was not bound by the judgment in that suit. The Supreme Court held that she could not, after having instituted suit in her trade or business name, deny in her real name the validity of the judgment or its binding effect upon her. We think the principle announced in this case is-applicable to a suit by a party in a trade or business name; in other words, that if a judgment in such a suit would be binding upon the real party suing in such business or trade name, the suit itself, being one by an individual in his assumed or trade name, would meet the requirement of the law that there should be a real party plaintiff. Under the doctrine laid down in the Ciarle case, supra, a defendant sued by a plaintiff under an assumed or trade name, where a judgment is obtained against him, could not have such judgment set aside or arrested on the ground that there was no real party plaintiff. Of course, the defendant is entitled to be sued by a real party plaintiff; and if he desires to contest the fact that he is so sued, he can do so by a plea in abatement, and set up a misnomer in the name of the party plaintiff. But if he admits, as he does by general demurrer or by motion to dismiss, that he is in fact sued by a real party plaintiff, although in such suit the trade or business name is used, we can see no reason in law or logic why such suit would not be a valid one against him, or whj he would not be fully protected and the purpose of the law in requiring real parties substantially complied with. We therefore conclude that either a natural or artificial person who is transacting business under an assumed or trade name can, in such name, maintain or defend a suit. This is clearly indicated by the decision in the Clark case, supra, and we think is implied by the Supreme Court in the case of Whitt v. Blount, 124 Ga. 671 (53 S. E. 205). It is a well known fact that many firms retain their original name many years after the original partners composing them have either retired or died, and that business is continued to be transacted in the name of such original firms; and we see no legal reason why individuals may not be allowed to adopt as their trade or business name any name they please, and by such name sue and be sued. The plaintiff in error relies upon the ease of W. & A. R. Co. v. Dalton Marble Works, supra. In that case the suit was brought by the “Dalton Marble Works,” and a motion was made to dismiss on the ground that there was no allegation that the Dalton Marble. Works was a corporation or partnership, and it was not the name of an individual. To meet this objection, an amendment was made, adding, after the words “Dalton Marble Works,” the words “H. P. Colvard, proprietor.” The court held' that it was not certain that the name “Dalton Marble AVorks” imported either a corporation or a partnership, and that the amendment negatived such a construction of the words, but, on the contrary, showed that the “Dalton Marble AArorks” was in fact neither a corporation, a partnership, nor an individual, but merely the name of Colvard’s property; that the words “II. P. Colvard, proprietor,” simply indicated that he was the owner of the “Dalton Marble Works;” and that the suit was therefore instituted in the name, not of a natural or artificial person, but of a piece of property, and that, therefore, there was no real party plaintiff. In the present case the amendment which was allowed alleged that the Valdosta Foundry and Machine Company was the trade name of E. L. Thomas, under which he' was in fact doing business. The words added by the amendment disclosed a real individual' caryjng on his business under a definite, fixed trade name, which was used by the leal individual in his suit. The two cases are therefore distinguished in the allegations made by the amendments respectively; and we think, as above indicated, that the ease sub judice falls more clearly within the reason of the rule as laid down by the Supreme Court in the Ciarle case, supra.

3, 4. The description of the property sued for, set out in the petition as amended, is sufficiently specific and definite. If this description leaves any doubt as to the identity of the property, the doubt can be easily solved by parol evidence. In pleading, very meager terms of identity may be sufficient, parol evidence being admissible, under such general words of description, to identify the. property. In mortgages or conditional sales of property “the courts lay hold of slight circumstances to supplement the descriptive words.” The words of description contained in this petition are more definite and specific than similar descriptive words approved by the Supreme Court as sufficient in the case of Thomas Furniture Co. v. T. & C. Furniture Co., 120 Ga. 879 (48 S. E. 333).

The ground of special demurrer, that the petition did not give the value of each article sued for, that it was not sufficient, on the question of value, to state only the aggregate value of the articles, is sufficiently met by the amendment, which was properly allowed. This amendment sets forth, opposite the name of' each one of the .articles sued for, its value, and then the aggregate value of the articles.

5. The grounds of the motion for a new trial are without merit. There was no conflict in the evidence as to the identity of the property sued for, or the fact that it belonged to the plaintiff, and that it was in the possession of the defendant when demand was made and when suit was filed. Only two witnesses testified on the question of value, and the verdict, as directed by the court, was for a less sum than the amount testified to by either witness. The property sued for was the same property which had been sold by the plaintiff, as set out and described in the conditional bill of sale, and the title of the plaintiff to the property in question was retained until paid for by this written instrument, which was duly executed and recorded. Besides this documentary evidence of title, the plaintiff swore positively that the property belonged to him; and there was no denial of this fact by the defendant. On the general grounds, therefore, the verdict was the only one that could have-been rendered, under the undisputed evidence and all reasonable inferences fairly deducible therefrom.

There was no error in admitting in evidence the conditional bill of sale covering the articles sued for, without preliminary proof of its execution. It was not objected to as improperly admitted to record; and when such instruments are duly executed and recorded, they are admitted in evidence without formal proof of execution, as in the case of mortgages. Anderson v. Leverette, 116 Ga. 732 (42 S. E. 1026).

We find no merit in any of the assignments of error, and the. judgment is therefore Affirmed.