O.C.G.A. § 10-1-491 (2019)

Annotations

JUDICIAL DECISIONS Ga. L. 1937, p. 804, § 5 applies to contract made before the statute’s enactment by any person or partnership conducting or transacting a business in this state under an assumed or fictitious or trade name, other than the real name or names of the individual or individuals conducting or transacting such business without having registered in the office of the clerk of the superior court as required by former Code 1933, §§ 106-301 and 106302. Walker v. Abbot, 57 Ga. App. 381, 195 S.E. 450, 1938 Ga. App. LEXIS 604 (1938). 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repealed Ga.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, 1938 Ga. LEXIS 464 (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. LEXIS 640 (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 Ga. LEXIS 448 (1938). Undertaking by individual in fictitious or trade name is obligation of individual. NCR Co. v. Sikes, 94 Ga. App. 391, 94 S.E.2d 782, 1956 Ga. App. LEXIS 553 (1956). Section binds sole proprietor who contracts in unregistered trade name. Goger v. United States (In re Eady), 4 B.R. 1, 1980 Bankr. LEXIS 5428 (Bankr. N.D. Ga. 1980). 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. NCR Co. v. Sikes, 94 Ga. App. 391, 94 S.E.2d 782, 1956 Ga. App. LEXIS 553 (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. NCR Co. v. Sikes, 94 Ga. App. 391, 94 S.E.2d 782, 1956 Ga. App. LEXIS 553 (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, 1973 U.S. Dist. LEXIS 12015 (M.D. Ga. 1973); Goger v. United States (In re Eady), 4 B.R. 1, 1980 Bankr. LEXIS 5428 (Bankr. N.D. Ga. 1980). 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 Ga. App. LEXIS 2355 (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, 1982 U.S. App. LEXIS 17949 (11th Cir. 1982).

SELLING/OTHER TRADE PRACTICES