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WASHBURN STORAGE COMPANY v. ELLIOTT, for use, etc., et al.
Action for damages. Before Judge Shaw. Fulton Superior Court. October 21, 1955.
1. While an action in tort may arise from the negligent omission or violation of a duty created by contract, nevertheless, where no negligence is alleged and the breach complained of is nothing more than the failure of the defendant to perform an obligation constituting one of the terms of the contract, such action must be construed as being ex contractu. Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252 (1) (76 S. E. 2d 536).
2. In a suit on a contract an agent cannot be joined as codefendant for the purpose of enforcing the terms of the contract made on behalf of the principal by the authorized agent acting solely in his representative capacity. Commercial City Bank v. Mitchell, 25 Ga. App. 837 (2) (105 S. E. 57).
3. One who is in fact merely an agent and acts with the authority of an undisclosed principal may at the election of the opposite party be held as the principal therein, but the contractual liability of such undisclosed agent and his principal is not joint, and the injured party must elect against whom he desires to proceed. Code 4-305; Davis v. Menefee, 34 Ga. App. 813 (1) (131 S. E. 527). Accordingly, the petition here, which alleges facts showing that the plaintiff contracted with the plaintiff in error, Washburn Storage Company, as a principal, but that such company was in fact the undisclosed agent of the codefendant, states a cause of action against the latter on the theory of undisclosed agency for breach of the bailment contract, but the petition is subject to the special demurrers interposed on the ground of misjoinder of parties defendant.
The trial court erred in overruling the demurrers to the petitions on the ground of misjoinder of parties defendant, and in not compelling the plaintiffs to elect as to which defendant they would proceed against.
In case No. 36013 Mrs. Helen S. Elliott brought suit for herself and in case No. 36014 for the use of her daughter against the plaintiff in error Washburn Storage Company and United Van Lines, Inc., alleging in substance that she entered into a parol contract with the plaintiff in error by and through its manager to transport household goods belonging to her and her daughter from New York to Atlanta and there held in storage pending her arrival. Although these petitions as finally amended are in 3 counts, in each it is alleged that the plaintiff in error arranged with United Van Lines to transport the goods to Atlanta and that this operation was accomplished according to plan and the goods stored in the warehouse of the plaintiff in error; that upon demand, after tender of charges for transportation and storage, delivery of the goods was refused, and the actions are for the value thereof. Although these petitions also alleged that the plaintiff in error and United Van Lines were agents of each other in connection with the transportation and storage of the goods, the pleaded facts show, when the petitions are properly construed, that the contract was made on behalf of the defendants in error with the plaintiff in error who was at the time of its inception considered by Mrs. Elliott and her daughter to be the principal, but that it later developed that the plaintiff in error was actually agent for the undisclosed principal, United Van Lines.
Northcutt & Edwards, W. S. Northcutt, Edwin R. Johnston, contra.
Smith, Field, Doremus & Ringel, James L. Flemister, for plaintiff in error.
Saturday May 23 02:41 EDT

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