Section bars defense of noncompliance in action on contract.

- If a suit was filed on a contract entered into between the plaintiff and the defendant in connection with and while the plaintiff was operating a business under an assumed or fictitious name, without having registered that name as required by Ga. L. 1929, p. 233, and the defendant filed a pleading setting up these facts as a defense to the suit, and the judge sustained such defense and entered a judgment of nonsuit, and thereafter the plaintiff brought the case to the Court of Appeals, properly presented the question whether the court erred in sustaining such defense, and it appeared that since the judgment of the trial court, and while the case was in the process of being brought to the Court of Appeals, the legislature, by Ga. L. 1937, p. 804, repealed Ga. L. 1929, p. 233, and expressly provided by Ga. L. 1937, p. 804, § 5 no suit or action heretofore or hereafter instituted by any such person, firm, partnership, or corporation, whether sounding in contract or tort, should be defeated because of any such failure to register, the Court of Appeals, under Ga. L. 1937, p. 804, should have applied Ga. L. 1937, p. 804, § 5 and reversed the judgment, not because the judge erred at the time of its rendition, but because it had subsequently become erroneous by operation of Ga. L. 1937, p. 804, § 5. Bowers v. Keller, 185 Ga. 435, 195 S.E. 447, answer conformed to, 57 Ga. App. 554, 196 S.E. 241 (1938).

Retroactive application of section not unconstitutional.

- Section 5 of Ga. L. 1937, p. 804, providing that no contract should be invalidated on the ground that it was entered into in an unregistered trade or partnership name, was not violative of the constitutional prohibition against enactment of retroactive laws as applied to a note which had become barred under Ga. L. 1929, p. 233. Bullard v. Holman, 184 Ga. 788, 193 S.E. 586 (1937).

Ga. L. 1937, p. 804, § 5 is not unconstitutional as applied to a note which was subject to defense under Ga. L. 1929, p. 233, relating to trade names, and was executed before the passage of Ga. L. 1937, p. 804. Sweat & Gaskins v. Williamson, 185 Ga. 495, 195 S.E. 408 (1938).

Undertaking by individual in fictitious or trade name is obligation of individual. National Cash Register Co. v. Sikes, 94 Ga. App. 391, 94 S.E.2d 782 (1956).

Section binds sole proprietor who contracts in unregistered trade name. Goger v. United States (In re Eady), 4 Bankr. 1 (Bankr. N.D. Ga. 1979).

Use of trade name on security agreement.

- Fact that title-retention contract was signed in a trade name by the owner of such business does not in anyway invalidate the contract. National Cash Register Co. v. Sikes, 94 Ga. App. 391, 94 S.E.2d 782 (1956).

Recording security agreement gives constructive notice of trade name.

- Title-retention contract signed by the purchaser in the purchaser's trade name by the purchaser in the purchaser's individual name is entitled to recording when it otherwise meets the requirements of the statute, and after being duly recorded constitutes constructive notice of the right and interest of the vendor therein as against the purchase of the property at a judicial sale on an execution issued against the purchaser in the purchaser's individual capacity. National Cash Register Co. v. Sikes, 94 Ga. App. 391, 94 S.E.2d 782 (1956).

Use of fictitious names in financing statements.

- While this section has the effect of binding those persons who contract in fictitious names to the contract so executed, it does not have the effect of saying that financing statements given in fictitious names are sufficient to notify subsequent creditors of the identity of the party using the fictitious name. Were a court to hold otherwise, the purpose of the statutory scheme of requiring a security interest to be perfected by filing a financing statement - to give notice to future creditors of the debtor - would be seriously undermined. In re Firth, 363 F. Supp. 369 (M.D. Ga. 1973); Goger v. United States (In re Eady), 4 Bankr. 1 (Bankr. N.D. Ga. 1979).

Burden of proving registration.

- O.C.G.A. § 10-1-491 places no burden on party using trade name to prove that the party has been registered. Barker v. Century 21-Atlanta E. Realty, Inc., 162 Ga. App. 828, 293 S.E.2d 76 (1982).

Contract entered in unregistered trade name deemed valid.

- O.C.G.A. § 10-1-491 expressly provides that a contract entered into in a trade name is valid notwithstanding the failure to register the trade name with the superior court clerk; the only penalty is that the nonregistering party will have to bear court costs. Brooks v. Maryville Loan & Fin. Co., 679 F.2d 837 (11th Cir. 1982).

Cited in Mobley v. Bailey, 52 Ga. App. 578, 184 S.E. 417 (1936); Slaten v. College Park Cem. Co., 185 Ga. 27, 193 S.E. 872 (1937); Wright v. Cannon, 185 Ga. 363, 195 S.E. 168 (1938); Bancroft v. Conyers Realty Co., 63 Ga. App. 106, 10 S.E.2d 286 (1940); Womble v. Parker, 208 Ga. 378, 67 S.E.2d 133 (1951); Mayeske v. Ferguson, 93 Ga. App. 841, 93 S.E.2d 190 (1956).