Suit was brought in the city court of Macon against the Studebaker Corporation of America, for damages for an alleged breach of a contract of guaranty of an automobile. Upon the trial, after the introduction of evidence by the plaintiff, a nonsuit was' granted. To this judgment he excepted.
The plaintiff’s petition contained substantially the following allegations: that the defendant was a non-resident corporation with an agent in Bibb county, Georgia, to wit, the firm of Willing-ham & Wheeler, composed of E. J. Willingham Jr. and J. C. Wheeler; that on June 34, 1911, plaintiff purchased of the defendant an automobile “known as an E. M. E. Boadster 30, and paid the full purchase-price therefor,” and at the time of purchase the defendant executed to the plaintiff the following contract of guaranty: “The Studebaker Corporation, E. M. E. Eactories, manufacturers of automobiles. Certificate No. 6764, Motor No. 31447, Model E. M. E. 30. Detroit, Michigan, H. S. A. Guaranty: This is to certify that the Studebaker Corporation fully warrants and guarantees the automobile covered by this certificate for a period of one full year from the date of original sale by the dealer. This guarantee includes all material and all equipment (tires excepted) used in connection with the construction of such automobile. Tops and windshield not guaranteed unless bearing E. M. E. nameplate. If any part or parts of this ear break or prove defective within one year from any cause whatsoever, and the customer shall forthwith communicate the fact to the Studebaker Corporation or one of its authorized dealers, giving the number of the car and the name of the dealer from whom the car was bought and the date of purchase, and if it shall appear that such breakage was not due to misuse, negligence, or accident, the Studebaker Corporation will furnish such new parts either at its branch house or its factory in Detroit, Mich., free of charge to the owner. This guarantee does not apply •either directly or indirectly to consequential damages of any nature whatsoever, or to the replacement of tires which are guaranteed by the manufacturers thereof. The Studebaker Corporation, Walter E. Elanders, Third Vice-President. Attest: James E. Spencer, Assistant Sect.” It was alleged that within six months from the date of purchase, the said automobile proved defective in the following parts: radiator, gasoline tank, left front fender, and body; and that notice of these defects was given the defendant, in com*634pliance with the contract, but that the defendant failed and refused to comply with its agreement and make good the defects, to petitioner’s damage.
The defendant in its answer admitted its non-residence, denied that it had an agent in the firm of Willingham & Wheeler, but averred that this firm were dealers in automobiles manufactured by the defendant, admitted the execution of the contract at the alleged date of sale, and. admitted that notice under the contract was given by the plaintiff, and that the defendant failed and refused to replace the parts, but denied that the plaintiff had purchased the automobile from it, averring that if such purchase was made, it was from some firm, or dealer, or person other than the defendant. It denied liability.
The written contract set forth in the petition was introduced in evidence. On the back of it. was the following endorsement: "The Studebaker Corporation. E. M. F. Factories, Manufacturers of Automobiles. Certificate of Guaranty. Certificate No. Model'E-M-F 30. Car No.-. Owner, Dr. T. M. Hall. Address, Milledgeville, Ga. Date of Sale, June 24th, 1911.” The plaintiff introduced evidence in support of the material allegations of the petition. Counsel agree that the ground upon which the presiding judge based his judgment of nonsuit was that the plaintiff failed to show any privity of contract between himself and the defendant, in that the evidence showed that the plaintiff purchased the car from the R. H. McComb Auto Company, of Baldwin county, Georgia; which was at that time a subdealer of Willingham & Wheeler, who were in turn dealers in "E. M. F.” automobiles in Bibb county, Georgia,'and not agents of the defendant.
Conceding that privity of contract between the McComb Auto Company and the defendant was totally lacking, nevertheless, under the construction that we place on the contract, and in the light of the allegations in the petition and of the admissions in the defendant’s answer, we think the court eared in granting a nonsuit. The execution of an instrument such as is involved in the present case means the doing of all such acts as are necessary to carry into effect its purpose. And in a suit upon such a contract, when the defendant admits the execution of the instrument, the remaining ’ elements of the case to be established by the plaintiff rare its breach and consequential damages. In such a case, unless the *635defendant establishes some justification or excuse recognized by law, his liability is fixed. When, therefore, in the present case the defendant admitted the execution of the instrument, if, under the trial court’s construction of - the contract, this admission, together with the further admission in the answer that the notice required by the contract had been given (which notice was required to contain the number of the car, the name of the dealer from whom bought, and the date of the sale), did not carry with it the presumption that the sale was conducted through an authorized dealer or invoke the principle of ratification, and so dispense with proof of authority in the McComb Auto Company, we are clear that these admissions did establish directly a privity or contractual relationship between the plaintiff and the defendant, and left only the necessity of proof of a breach and damage, to authorize the submission of the case to the jury.
It is true, the plaintiff alleged in his petition that Willingham & Wheeler were agents of the defendant, but this allegation was merely for the purpose of showing the court’s jurisdiction of the non-resident defendant, and when the defendant appeared and pleaded to the merits the allegation had completely served its purpose. Under the construction we place on the contract, the trial court having .admitted evidence in support of the material allegations of the plaintiff’s petition, the case should have been submitted to the jury’s consideration, and the court erred in granting a nonsuit. Judgment reversed.