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WEBB, Judge.
Action on account. Fulton Civil Court. Before Judge Bradford.
Planes, Inc. brought suit against Earth Services Advertising, Inc., Earth Services Organization, Inc., and Gilbert B. Dickey, Jr., alleging that each was liable on account. The jury found in plaintiff's favor against all defendants in the amount sued for, and Dickey prosecutes this appeal from the judgment on the verdict. The sole enumeration of error is that the trial court erred in overruling his motion to dismiss the complaint for failure to state a claim upon which relief could be granted.
The statement of the account attached to the complaint as an exhibit is a monthly billing addressed to:
"Earth Services Organization
Attn: Mr. Gilbert Dickey
1675 Virginia Avenue
Atlanta, Georgia 30337."
Dickey contends that this wording shows as a matter of law that plaintiff was proceeding against the corporation as disclosed principal and against him as its agent and that this is not permissible unless the credit were extended to both. The question of whether credit was given to Dickey personally is a question of fact to be decided by the jury. "Where the agency is known, and the credit is not expressly given to the agent, he shall not be personally responsible upon the contract. The question to whom the credit is given is a question of fact to be decided by the jury under the circumstances in each case." Code 4-406. If the jury found that credit was given to Dickey personally, liability would attach to him. Yarbrough & Co. v. Travis Pruitt & Associates, 130 Ga. App. 49 (202 SE2d 227). A different result might follow if a contract were involved showing that the corporation was the sole contracting party and that the agent was acting solely in a representative capacity. See Cambridge v. Bache, 25 Ga. App. 815 (104 SE 914); LeCraw v. Burdine Enterprises, Inc., 112 Ga. App. 49 (143 SE2d 679).
Since there is a set of facts in support of plaintiff's claim entitling it to relief, the trial court did not err in overruling the motion to dismiss the complaint.
Neely & Player, William F. Welch, for appellee.
Coggin, Haddon, Stuckey & Thompson, T. Jerry Jackson, for appellant.
ARGUED MARCH 2, 1976 -- DECIDED MARCH 11, 1976.
Friday May 22 07:49 EDT

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