Earnest C. West, Fred G. West, and J. H. *855West, doing business as West Brothers Sheet Metal Works, brought suit in the municipal court of Atlanta on an open account against Frick Company, a corporation. By amendment the plaintiffs alleged “that they had not filed the affidavit referred to in the act approved August 15, 1929, regarding the use of trade-names, which act is now set out in sections 106-301, 106-302, and 106-304 of the 1933 Code of the State of Georgia, at the time the agreement was made upon which the above-styled suit is based nor had they filed the affidavit at the said time suit was instituted.” The account sued on and which is attached to and made a part of the petition, is dated December 24, 1934. The defendant demurred to the petition as amended, on the ground that it showed that the account sued on was contracted more than thirty days after August 15, 1929 (the date of the act relative to trade-names), and that the plaintiff had not complied Avith the provisions of said act, “and that the plaintiff is therefore not entitled to recover on said alleged contract or account.” The judge sustained the demurrer and dismissed the action; and on this judgment the plaintiff assigns error.
The Code, § 106-301, distinctly provides that it shall be unlawful for persons to transact business in this State under a trade-name, unless they shall file in the office of the clerk of the superior court in each county where they maintain an office or place of business, an affidavit signed by said persons setting forth the names and addresses of the true owners of the business. It is undisputed that the plaintiffs maintained an office or place of business in Fulton County. The address of the plaintiffs’ place of business given on the account sued on is “297 Marietta Street, Atlanta, Georgia.” Since the petition as amended showed that the plaintiffs were doing business under a trade-name, had an office or place of business in Fulton County, and had not, at the time of making the contract of sale sued upon, complied with the law as embodied in Code, §§ 106-301 et seq., by filing with the clerk of the court an affidavit setting forth the names and addresses of the true owners of the business, they were doing business in violation of the law at the time the contract of sale was made and therefore are not' entitled to recover on the account. The court did not err in sustaining the general demurrer and. dismissing the action. Dunn & McCarthy Inc. v. Pinkston, 179 Ga. 31 (2, 3), *85633, 34 (175 S. E. 4); Prater v. Larabee Flour Mills Co., 180 Ga. 581 (180 S. E. 235); Constitution Publishing Co. v. Lyon, 52 Ga. App. 434 (183 S. E. 653).
The bill of exceptions recites that the “ plaintiff insisted before the trial court, and urged him to hold that said act of August 15, 1929, referred to in defendant’s demurrer, was unconstitutional,” for certain stated reasons. The case was appealed to the Supreme Court, and that court, in transmitting it to the Court of Appeals, said: '“This court will never pass upon the constitutionality of an act of the General Assembly unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judgeand that the method employed by the plaintiff in attempting to raise the constitutional question, as disclosed by the record, “does not suffice to present a constitutional question in the manner prescribed by law.” See West v. Frick Co., 183 Ga. 182 (187 S. E. 868).
Judgment affirmed.
MacIntyre and Guerry, JJ., concur.