18 Ga. App. 479 | Ga. Ct. App. | 1916
J. M. Anderson brought his action of complaint against E. W. Lucky in the city court of Louisville. The court dismissed the petition on general demurrer, and the plaintiff excepted. Anderson alleged in his petition that the defendant had injured and damaged him in the sum of $2,500, arising out of a breach of contract upon the following facts, to wit: “ On or about the year 1904 one E. E. Hatcher told the petitioner that if petitioner and one J. J. Phillips would erect and put up telephone poles for a distance of about five miles leading from Hatcher’s Mili in Jefferson county to Wrens, Georgia, he would furnish the wire, insulators, and all other stuff necessary to establish and put up a telephone line from said Hatcher’s Mill to Wrens, Georgia; that
The learned counsel for the defendant argues in his brief that the judgment on the demurrer was correct, for the reason, that the contract as set forth in the petition shows either that there was a partnership between the parties or that they were tenants in common of the telephone line; and that, if he is mistaken as to both of these contentions, the contract is not such a one that damages could be collected for a breach thereof, especially as the damages claimed are not definite, and it is not possible to estimate from the allegations of the petition the amount of the damages. In our judgment, under the contract set forth in the petition and the allegations thereof, there was neither a partnership between the parties nor a tenancy in common. As was said by Justice Beck in Hancock v. Tharpe, 129 Ga. 812 (60 S. E. 168) : “The contention of counsel for plaintiff, that his client and the defendants in the case were partners relative to the property in question, is not
The facts in this case, as disclosed by the petition, clearly show . that there was no tenancy in common between the parties involved. A tenancy in common is created wherever two or more persons, from any cause, are entitled to the possession simultaneously of any property in this State. Although it is true that tenants in common may have unequal shares of the property, yet each one must have a share thereof. Civil Code, § 3723. See also, on this subject, 38 Cyc. 3.
The case of Hancock v. Tharpe, supra, cited by counsel for the defendant, is distinguished, as to this point, by its facts from the instant case. In that case the material difference, as to this point, is that it was agreed between the parties that the telephone line was to be their common, joint property, after it was erected, while in this ease there was no common or joint interest whatever in the physical property of the telephone line; the litre being owned by one of the parties solely, while the other two parties had merely a right to use the line for telephone purposes.
The-court erred in dismissing the petition on demurrer.
Judgment reversed.