173 Ga. 400 | Ga. | 1931
Lead Opinion
Under the pleadings and the evidence in this case, the court did not err in overruling the demurrer to the plaintiff’s petition. While the contract as originally entered into might not have been enforceable, on the ground that it was without consideration and unilateral, the part performance of the contract and the services rendered in the business by tlie petitioner, as set forth and alleged in his petition, supplied the lack of mutuality and rendered the contract enforceable and a breach of it actionable. The defendant could not take advantage of the offer of the petitioner, as set forth in the pleadings of the latter, and receive the benefit of his services and then breach the contract, without rendering himself liable.
But we are of tlie opinion that the court erred in refusing to consider and give effect to the plea in bar filed in this case. Consideration being given to all the pleadings and the evidence, the plea in bar should have been sustained. The plaintiff had gone into the Federal court, the court having jurisdiction of the matter, and had set up his rights under the contract, and other matters which' gave him an interest in the litigation, and his rights under the contract and under the facts pleaded had been adjudicated, and under that adjudication the assignee of all his rights in the
Judgment reversed.
Rehearing
ON MOTION EOR REHEARING.
It is insisted that the contract made between Floding and Brown and two other persons, dated April 15, 1927, was not the contract the breach of which is made the basis of this suit, and that this court in rendering the decision in the case overlooked the fact that it was a prior contract, made in November, 1926, which the plaintiff was relying upon and in consequence of the breach of which plaintiff claims damages. It may have been the intention of counsel for plaintiff in the court below to sue upon that contract; but this court construed the petition, after carefully considering all the allegations in it, and was authorized to hold that plaintiff was suing upon the contract dated April 15, 1927. There are references in several of the paragraphs of the petition to certain agreements between Floding and Brown. In paragraph 3 we find the following: “Petitioner avers that he is entitled to receive and recover from the defendant Paul F. Brown the sum of $25,000, by way of cross-action in said suit now pending in the said municipal court, because of a breach of a contract in writing between the petitioner and the said Dr. Brown.'' In paragraph 8 it is alleged: “Later, on the 15th day of April, 1927, a contract in writing was entered into between petitioner and Dr. Brown, which provided for the division of the stock in the company, a copy of said writing being hereto attached as Exhibit A.'' These are the only references to a contract in writing, and are the only expressions in which the word contract is used up to this point in the petition, though there are other references to an agreement whch had been entered into. In one of the orders of Judge Sibley, of the United States court, we find the following: “This business was bought by Dr. Paul F. Brown from Lane Cotton Mills Company, Mr. Floding and his daughter having some connection with the purchase. They had agreements, or disagreements, touching it prior to the 15th day of April, 1927, when they made a written contract which put an end to both;'' which shows that he construed the contract of April 15, 1927, as controlling the matter.