Norcross Butter & Cheese Manufacturing Co. v. Summerour , 114 Ga. 156 ( 1901 )

Cobb, J.

This was a suit originally brought in a justice’s court by the Chicago Building and Manufacturing Company against H. H. Summerour, to recover from the defendant a sum subscribed by him for the purpose of building a butter and cheese factory at Norcross, Georgia. The case was by consent appealed to the superior court. Attached to the summons was a copy of a contract entered into by the plaintiff company with the defendant and his associates. From this contract it appeared that these persons had subscribed a certain sum of money for the purpose of building a butter and cheese factory at the place named, and that they had agreed, when the entire amount necessary for the purpose indicated had been subscribed, to incorporate themselves under the laws of this State. The defendant filed a plea setting up that the subscribers to the stock had been incorporated, pursuant to the contract, under the name and style of the Norcross Butter and Cheese Manufacturing Company, and that after their incorporation the plaintiff’s right of action for unpaid subscriptions must be asserted against the incorporated company. The plaintiff thereupon offered to amend the original summons by inserting the name of the Norcross Butter and Cheese Manufacturing Company as plaintiff, suing for the use of the Chicago Building and Manufacturing Company. This amendment was allowed without objection from the defendant, so far as appears from the record. The defendant then demurred to the summons as amended, upon the grounds that no cause of action was set forth; that if the plaintiff had any cause of action at all, it was against the Norcross Butter and Cheese Manufacturing Company; and that, not having established any debt or claim against the Norcross Company, it could not proceed in its name against the defendant to collect any sum that may be due to such company.' The court sustained this demurrer and dismissed the case, and this ruling is assigned as error by the Norcross Butter and Cheese Manufacturing Company.

Under the contract attached to the summons, the defendant was originally hable to the Chicago Building and Manufacturing Company for the amount of his subscription. As soon, however, as the sübscribers were incorporated pursuant to the contract, the liability of the defendant was shifted to the new company, and this corporation became liable to the Chicago Building and Manufacturing Company for the amount of the unpaid subscriptions. In other words, after the incorporation of the new company, the liability of the subscribers to the Chicago Company ceased, and the only recourse of this company was upon the corporation which the subscribers had formed. Such was the opinion of this court as to the respective liabilities of the parties to a similar contract in the case of the Chicago Building Company v. Talbotton Creamery Company, 106 Ga. 84, 89. It is entirely probable that if the proper objection had been made by the defendant to the allowance of the amendment to the summons, such amendment should have been rejected. The amendment made a complete change of parties plaintiff, and converted the suit into one in which a different party was seeking to enforce a liability to it, though growing out of the same contract which was sought to be enforced in the first instance. But be this as it may, no objection whatever was made to the allowance of the amendment, and we are called upon to decide simply whether the demurrers to the summons as amended were well taken. We are of opinion that they were not. In framing these demurrers the defendant seems not to have apprehended the radical change which had been made in the cause of action by the amendment. The original plaintiff was entirely eliminated, and the question of the liability of the Norcross Company to it was entirely immaterial. The sole question to be considered was, ■did the summons as amended state a liability on the part of the ■defendant to the Norcross Butter and Cheese Manufacturing Company ? Such a liability is shown when the contract attached to the summons is considered in the light of the allegations in the amendment, from which it can be inferred that the subscribers had been incorporated pursuant to the contract, and that the name of this corporation was the Norcross Butter and Cheese Manufacturing Company. The suit, therefore, is to be treated as if originally brought by this latter company; and so treating it, it was not subject to the objections set up in the demurrers. Nor did the circumstance that the suit, was proceeding in the name of the Norcross Company for the use of the original plaintiff present any sufficient reason why the suit should have been dismissed. Any plaintiff may, at his option, provided so doing does not prejudice any defense which the •defendant may have had, declare his intention to recover for the benefit of any other person. Buffington v. Blackwell, 52 Ga. 129, 130; Richmond R. Co. v. Bedell, 88 Ga. 591; Terrell v. Stevenson, 97 Ga. 572. But irrespective of the right of such third person, after recovery, to enforce such a declaration of intention, it is certainly a matter about which ordinarily a defendant will not be allowed to complain. The liability of the defendant to the person for whose benefit the recovery is sought is not in any way involved in an action of the nature of the one instituted in the present case. It is a matter of no concern to the defendant what becomes of the money which he owes the plaintiff after it is recovered. As to him the words, for use, etc., are generally mere surplusage. Burke v. Steel, 40 Ga. 217; Cross v. Johnson, 65 Ga. 717.

Judgment reversed.

All the Justices concurring.