Mobley v. Bailey , 1936 Ga. App. LEXIS 185 ( 1936 )

Guerry, J.,

concurring specially. Under the decisions of the Supreme Court cited in the opinion, I concur in the judgment of reversal. In my opinion, under the act no contract made in a fictitious name, which has not been recorded in compliance with the act, is enforceable, and the retention of the title in this case necessarily depending on the contract, an action in trover will not lie in favor of the South Georgia Motors, a fictitious unrecorded trade-name. I think, however, E. T. Bailey and C. H. Taylor who were the partners composing this firm, irrespective of any name they might call the firm, were the owners and holders of the automobile sold to the defendant; and irrespective of any contract, but under an implied assumpsit, where the defendant is in possession of property belonging to the plaintiffs, for which she has not paid the fair market value, an action will lie in favor of the plaintiffs against the defendant for such fair market value. The sale, by the partners, of an automobile to the defendant is not an illegal transaction. If no contract had been entered into between the parties, and the defendant is in possession of an automobile belonging to the partners, she is legally bound to pay the reasonable market price therefor. Not having complied with the law as to registration, the fictitious name had no legal standing, and a suit brought in such name or under a contract given in such fictitious name falls. All rights of the plaintiffs are not destroyed, but they are relegated to their action under an implied assumpsit.