Opinion
33582.
DECIDED NOVEMBER 21, 1951.
Action for damages; from Fulton Superior Court — Judge Andrews. March 14, 1951.
W. George Thomas, for plaintiff.
John H. Hudson, J. Walter LeCraw, for defendants.
1. Where in an action for tort against two named persons, as a partnership doing business under a given firm name, it is alleged that one of the named defendants, as a partner and agent of the firm, without probable cause, swore out a warrant and had the plaintiff arrested on February 10, 1950, on a charge of cheating and swindling, and in the same petition it is alleged that, subsequently to February 1, 1950, the named defendants dissolved the partnership, such petition, when it is construed most strongly against the pleader, as it must be as against demurrer, fails to allege the existence of the partnership relation, or, under such a state of pleading, facts from which the existence of the partnership relation could be inferred; and, under such circumstances, such a petition fails to allege a cause of action against the named partnership.
2. Where, in such an action as indicated above, the other of the two named defendants would be liable only by virtue of the partnership relation, and there are no allegations sufficient to charge him with liability as an individual, such other defendant's general demurrer to the petition is properly sustained and the case properly dismissed as to him, in the absence of a sufficient allegation of the existence of the partnership relation, or facts from which such relationship could be inferred.
3. Where, in such an action as indicated in the first division of this opinion, it is alleged distinctly that the named defendant who is alleged to have committed the tortious acts did so as the agent of the named firm, the petition sets forth no cause of action against him individually, and his general demurrer to the petition is properly sustained. King Brothers Co. v. Passmore, 18 Ga. App. 514 (2a) ( 89 S.E. 1103); Price Mass v. Bell, 88 Ga. 740 (3) ( 15 S.E. 810); and see Peach Motor Express Co. v. Salmon, 73 Ga. App. 816 ( 38 S.E.2d 302).
Judgment affirmed. Gardner and Townsend, JJ., concur.
DECIDED NOVEMBER 21, 1951.
John Freeney brought an action against Ira Jones and N.E. Wood Sr., doing business as the South Side Printing Company, a partnership, alleging that the defendants had damaged him in the sum of $15,000. The other allegations of the petition, as finally amended, are substantially as follows: On or about February 1, 1950, the plaintiff was doing business with the South Side Printing Company, a partnership composed of the defendants, by engaging them to do printing work for him; and, at that time, he was indebted to the South Side Printing Company for work done and to be done in the amount of $95. On that date the plaintiff had in his possession a check in the amount of $412, representing payment for goods and merchandise which the plaintiff had delivered to B. N. Gaines, doing business as Elliston Place Service Station, Nashville, Tennessee. The check was drawn on the American National Bank, Central Park Branch, Nashville, Tennessee, by Elliston Place Service Station, by B. N. Gaines. On February 1, 1950, pursuant to the request of the South Side Printing Company, by and through Ira Jones, an agent and partner of the South Side Printing Company, to pay the account in the amount of $95, the plaintiff informed Jones that he did not have the cash on his person, but did have the check referred to above. Jones, the agent and partner of the South Side Printing Company, thereupon stated that he would cash the check and deduct the amount of the bill, as he had previously cashed checks given him by the plaintiff drawn by B. N. Gaines, doing business as Elliston Place Service Station, and they had been good; and thereupon Jones, an agent and partner of the South Side Printing Company, deducted $95 and gave the plaintiff $317, which was the balance due to the plaintiff from the check. The check at that time is shown to have been endorsed as follows: "Service Station Sales, John Freeney; South Side Ptg. Co., Ira W. Jones." Thereafter this check was returned to the defendants because of "insufficient funds." The plaintiff was notified of the return of the check, and, after making several long-distance telephone calls to the maker of the check, Gaines, he informed the defendants to return the check for collection. On February 10, 1950, the South Side Printing Company's agent and partner, Ira Jones, swore out a criminal warrant before Lester Hardy, justice of the peace, charging the plaintiff with the criminal offense of cheating and swindling, for giving the check in question to the South Side Printing Company. The plaintiff was arrested under the warrant, and bond was made for his appearance before the said justice of the peace. After the plaintiff had been arrested and made bond, he discovered that the criminal offense, if any, had been committed inside the city limits of Atlanta, and that the justice of the peace had no jurisdiction of offenses committed inside such limits. Counsel for the plaintiff complained in writing to the chief judge of the Civil Court of Fulton County, requesting that the warrant be required to be transferred to that court, as that court had jurisdiction of the offense, if any. The chief judge of that court wrote a letter to the justice of the peace, requesting the transfer of the warrant to the Civil Court of Fulton County. This request was complied with, the warrant was transferred, and when the case was called in that court on April 14, 1950, the court dismissed the warrant. It was alleged further that the warrant was taken against the plaintiff falsely and maliciously and without any reasonable or probable cause whatsoever; and that, under and by virtue of the warrant, the defendant's arrest was effected wrongfully, unjustly, and without probable cause. The South Side Printing Company has not persisted in prosecuting the plaintiff, but thereafter abandoned the prosecution in the following manner: Sometime after February 1, 1950, Jones and Wood dissolved partnership, and thereafter Jones brought a civil action against the defendant in the Civil Court of Fulton County, obtained judgment thereon against the present plaintiff, who paid the judgment and now has the check in question in his possession, thereby terminating in favor of the present plaintiff the criminal proceedings on the warrant.
Ira Jones and N.E. Wood Sr. filed separate general demurrers to the petition as finally amended. The general demurrers of each were sustained and the case dismissed as to each. The plaintiff assigns error on these judgments.