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Action on contract. Fulton Civil Court. Before Judge Parker.
NICHOLS, Presiding Judge.
Where a contract shows on its face the parties thereto, the signature of a third person in the place where "parties" usually sign will be deemed the act of an agent and not of a party to the contract.
C. Buck LeCraw and Wesley U. Moran filed an action against Burdine Enterprises, Inc., a corporation, to recover damages for the alleged breach of a written agreement to lease real estate. The petition alleged that the plaintiffs entered into a written agreement with the defendant to lease certain real estate and that a copy of such agreement was attached as an exhibit to the petition. The first paragraph of the exhibit attached to the petition read: "This document is a general agreement between Dr. Winston E. Burdine, owner of property commonly known as 431-41 Clairmont Avenue, Decatur, Georgia, and Mr. C. Buck LeCraw and Mr. Wesley U. Moran, partners, to enter into a ground leasehold contract on the above described property." The exhibit was signed by both plaintiffs and "Burdine Enterprises, Inc. W. E. Burdine, M. D., Pres." The defendant corporation demurred to the plaintiffs' petition and the trial court sustained the defendant's general demurrer and it is to such judgment adverse to them that the plaintiffs now except.
"Allegations of a petition must yield to contradictory facts shown by exhibits attached thereto." National Life &c. Ins. Co. v. Wilson, 106 Ga. App. 504 (1a) (127 SE2d 306). The petition alleged that the plaintiffs and the defendant (the corporation) entered into the contract attached as an exhibit, but the exhibit showed on its face that it was a contract between "Dr. Winston E. Burdine, owner of" the property and the plaintiffs, and although the exhibit was signed "Burdine Enterprises, Inc., W. E. Burdine, M. D., Pres." the body of the contract is controlling as to the "parties" to such a contract. See Tenant v. Blacker, 27 Ga. 418; Payton v. McPhaul, 128 Ga. 510 (3) (58 SE 50, 11 AC 163).
Had the contract itself not contained the above quoted reference to the fact that it was an agreement between "Dr. W. E. Burdine, owner of" the property and the plaintiffs, then under the decisions exemplified by Spiller-Beall Co. v. Hirsch, 18 Ga. App. 450 (1) (89 SE 587), the corporation would have been the proper defendant, for the signature "Burdine Enterprises, Inc." followed by "W. E. Burdine, M. D., Pres." would have been the act of the corporation and not the act of the person described as president of the corporation.
The contract shows on its face that it is between W. E. Burdine and the plaintiffs, and the corporate defendant being at most an agent of a disclosed principal, no credit of the agent being involved, it would not be personally liable. See Gill v. Tilson, 61 Ga. 161.
Accordingly, without deciding whether the petition otherwise set forth a cause of action, or whether under the doctrine of estoppel or otherwise the named president of the defendant corporation, who was also the person named in the body of the alleged "agreement to lease," would be personally liable for the alleged breach of the contract, the petition failed to set forth a cause of action against the defendant corporation and the trial court did not err in sustaining the general demurrer and dismissing the petition.
Judgment affirmed. Eberhardt and Pannell, JJ., concur.
Margaret Hopkins, contra.
Edenfield, Heyman & Sizemore, Robert G. Young, for plaintiffs in error.
Friday May 22 21:03 EDT

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