Carter v. Kim

277 S.E.2d 776, 157 Ga. App. 418, 1981 Ga. App. LEXIS 1851

Opinion

Banke, Judge.

The plaintiffs sued to recover $17,000 which they had paid to the defendants pursuant to an agreement for the purchase of a business known as “Mutt & Jeff Porkskins Company.” The complaint alleged both that the agreement was unenforceable and that it had been mutually rescinded. The trial court found the contract unenforceable as a matter of law, both because it failed to identify the assets included in the sale and because the defendants were shown not to be the actual owners of the business. He accordingly directed a verdict for the plaintiffs, and the defendants appealed.

The written agreement recited that the two defendants personally owned the business, and each signed in his individual capacity. However, the undisputed evidence at trial established that the actual owner was a corporation, and there was no evidence to suggest that the defendants either owned that corporation or were otherwise authorized to dispose of its assets. Held:

The party asserting the existence of a contract has the burden of proving its existence and its terms. Jinright v. Russell, 123 Ga. App. 706 (1) 708 (182 SE2d 328) (1971). Similarly, where the existence of an agency is relied upon, the burden of proof rests with the party asserting the relationship. See Quillian & Bros. v. Wales &c. Co., 34 Ga. App. 135, 136 (128 SE 698) (1925); 3 AmJur2d 705, Agency, § 348. Since the defendant introduced no evidence to establish their authority to act for the corporation, the trial court was correct in directing a verdict in favor of the plaintiffs. Our decision on this issue makes it unnecessary to consider the issue of whether the contract was void for indefiniteness.

Decided February 9, 1981. James A. Parker, for appellants. Steven F. Unti, for appellees.

Judgment affirmed.

Deen, P. J., and Carley, J., concur.