Opinion
41551.
ARGUED OCTOBER 4, 1965.
DECIDED NOVEMBER 10, 1965. REHEARING DENIED NOVEMBER 29, 1965.
Action on contract. Fulton Civil Court. Before Judge Parker.
G. Hughel Harrison, for plaintiff in error.
Kilpatrick, Cody, Rogers, McClatchey Regenstein, Thomas C. Shelton, G. Kimbrough Taylor, Jr., contra.
1. The overruling of the general demurrer to the petition, in which it appeared that the unsealed contract was signed in the agent's individual capacity, was harmless because the evidence on the trial conclusively showed that he signed the contract as agent and that the appellant knew such fact and accepted the benefits of the principal's performance of promises made by the agent in its behalf.
2. The agreement that the plaintiff would forego the right to close out appellant's brokerage account for thirty days was consideration for her assuming the obligations of a friend.
3. The evidence supported the judgment of the court trying the case without a jury.
ARGUED OCTOBER 4, 1965 — DECIDED NOVEMBER 10, 1965 — REHEARING DENIED NOVEMBER 29, 1965.
J. C. Bradford Company, a partnership, sued Mrs. Mollie G. Greenberg to recover $6,067.80 for a breach of the following contract: "As mutually agreed that upon Mrs. Mollie G. Greenberg depositing $10,000.00 in addition to the $1,000.00 already on deposit against the account of Mrs. Mollie G. Greenberg for 10,000 shares of Kerr Lake Mines in the amount of $25,834.23 and the account of Mrs. Toby Margolis for 55,000 shares of Maneast Uranium in the amount of $12,264.24, and that Mrs. Greenberg agrees to keep these accounts properly margined to within $1,000.00 of the market due to fluctuations in the prices of these securities. That is, if the market value should decline by as much as $1,000.00, Mrs. Greenberg will maintain the proper margin in these accounts. The J. C. Bradford Company agrees not to sell any stocks in the above two accounts within the next thirty days unless authorized to do so by Mrs. Mollie G. Greenberg. If this agreement is not fulfilled as mutually agreed, it becomes void. /s/ Mrs. Mollie G. Greenberg. /s/ Thomas H. Stafford."
The defendant filed general and special demurrers to the petition as amended, and filed an answer denying the material allegations of the petition. The court overruled the demurrers and the court trying the case without a jury found in favor of the plaintiff. Mrs. Mollie G. Greenberg excepts to the overruling of the demurrers and to the overruling of the motion for a new trial on the general grounds.
1. The petition was subject to a general demurrer for the reason that it was not alleged in the petition that Thomas H. Stafford signed in the capacity as agent for the plaintiff and that he was authorized to so sign and so act. While this question was not raised by the parties in the argument before this court, the question is in the case and cannot be disregarded on the ground that parties did not argue it. However, upon the trial of the case the evidence demanded the finding that Mr. Stafford signed the contract as agent of the plaintiff and that Mrs. Mollie G. Greenberg knew that he so acted; that she accepted the benefits of the contract resulting from the performance by the plaintiff of its obligations under the contract and would be now estopped to contend that Mr. Stafford was acting in his individual capacity. The evidence also shows that the contract could not have been performed by Mr. Stafford as an individual in such a capacity. Thus, it appears that the overruling of the general demurrer was harmless and the case should not be reversed because of the error of the judge in overruling the general demurrer on the ground above discussed. See Raleigh Gaston R. Co. v. Pullman Co., 122 Ga. 700, 709 ( 50 S.E. 1008). This contract is not under seal. For the rule respecting proof of agency by parol in cases of unsealed contracts, see, Merchants Bank of Macon v. Central Bank of Ga., 1 Ga. 418, 429; Hanks Foundry Co. v. Woodstock Iron Works, 127 Ga. 108 ( 56 S.E. 106); Dorsey v. Rankin, 43 Ga. App. 12 ( 157 S.E. 876); Fitzgerald Cotton Oil Co. v. Farmers Supply Co., 3 Ga. App. 212 ( 59 S.E. 713).
2. It is contended by Mrs. Greenberg that there was no consideration for her execution of the contract above set out. The argument is that Mrs. Greenberg assumed an obligation of her friend, Mrs. Toby Margolis. Whether or not there is other consideration, there is consideration flowing to Mrs. Greenberg in that the contract provided that J. B. Bradford Company agreed not to sell any stocks of Mrs. Margolis or Mrs. Greenberg within 60 days from November 22, 1957, the date of the contract. J. C. Bradford Company had a right to sell Mrs. Greenberg's stock immediately upon her failure to properly margin her account, which the company forebore to do in consideration of the promises of Mrs. Greenberg in the contract. Tatum v. Morgan, 108 Ga. 336 ( 33 S.E. 940). As to this point the demurrers were properly overruled.
3. The evidence authorized the judgment of the court.
The judgment of the court overruling the general and special demurrers is affirmed.
The court did not err in overruling the motion for a new trial.
Judgments affirmed. Jordan and Deen, JJ., concur.