Opinion
36339.
DECIDED OCTOBER 10, 1956.
Action on employment contract. Before Judge Paschall. Whitfield Superior Court. May 31, 1956.
Pittman, Kinney Pope, for plaintiff in error.
Hardin McCamy, contra.
The court did not err in overruling the renewed demurrers to the petition as amended.
DECIDED OCTOBER 10, 1956.
David H. Berman, doing business as David H. Berman Company, sued R. G. Miller, doing business as R. G. Miller Company, on an employment contract in which the defendant allegedly hired the plaintiff to act as the defendant's sales agent. The contract sued on was in part as follows: "The R. G. Miller Company of Dalton, Georgia, agrees to give The David H. Berman Company of Chicago, Illinois, the exclusive selling rights of the Miller Rug Line in the United States." The contract was signed on behalf of defendant as follows: "/s/ R. G. Miller, R. G. Miller, Sr., President, R. G. Miller Company."
The defendant R. G. Miller demurred to the petition on the ground that the action was against R. G. Miller individually, whereas the contract sued on showed that it was entered into by a corporation, R. G. Miller Company. In response to the demurrer, the plaintiff filed the following amendment: "Although said contract purports to be an agreement of R. G. Miller Company, a corporation, executed by R. G. Miller, as president, said contract is in fact and law the agreement and contract of R. G. Miller, individually; that for many years R. G. Miller, as an individual, engaged in the business of manufacture and sale of chenille products, chenille machinery and similar goods and articles under the name and style of R. G. Miller Company; that in October of 1946, R. G. Miller filed an application in the Superior Court of Whitfield County, Georgia, for the grant of a corporate charter, bringing such application in the name of himself, his two (2) sons, R. G. Miller, Jr., and Kenneth Miller, and his son-in-law, James M. Feighery; that said corporate charter was granted by the order of the court, but the individual properties and assets of R. G. Miller were never conveyed to the corporation, but the said R. G. Miller continued to do business individually with such property and assets and the manufacturing equipment in the premises; that he continued to operate individually, using said corporation as his agent, and his alter ego; that said corporation was never legally organized, no capital stock was issued, no officers were duly and legally elected, nor was the corporate affairs ever conducted through a directorate, as required by law; that the said R. G. Miller continued in his individual operation of the affairs of R. G. Miller Company, and operated the same as though the same were his individual and personal property; that such was the condition of the operation of the business in existence at the time of the execution of the contract above referred to, and that the execution of the contract in the name of R. G. Miller Company, by R. G. Miller, president, was in fact the individual act and undertaking of R. G. Miller, individually; that at all times said corporation was nothing more or less than the agent and alter ego of R. G. Miller, individually, and all acts in the corporate name were the individual acts of R. G. Miller."
The defendant's renewed demurrer to the petition as amended was overruled and he excepts.
The amendment did not set up a new cause of action different from the one originally sued on nor did it seek to vary the terms of a written contract. The original action was brought against the defendant as an individual and the amendment merely explained what the defendant called an inconsistency in his pleadings. Assuming for the sake of argument that the signature "/s/ R. G. Miller, R. G. Miller, Sr., President, R. G. Miller Company" imports a corporate signature, the plaintiff by amendment had the right to show that the contract sued on was not entered into by a corporation but by the defendant as an individual using a trade name. The amendment alleged that the corporation never organized under its charter and never did business as a corporation and that the defendant R. G. Miller used the "corporation" as a personal trade name.
Organization under its charter is necessary before a corporation can do a corporate act. Rau v. Union Paper Mill Co., 95 Ga. 208, 212 ( 22 S.E. 146), R. A. C. Realty Co. v. W. O. U. F. Atlanta Realty Corp., 205 Ga. 154, 164 ( 52 S.E.2d 617).
Since the R. G. Miller Company never organized under its charter, it could not do business as a corporation and, therefore, could not as a corporation enter into the contract sued on. Under the pleadings the contract sued on was the personal undertaking of R. G. Miller. Therefore, the court did not err in overruling the demurrers.
Judgment affirmed. Quillian and Nichols, JJ., concur.