100 Ga. App. 511 | Ga. Ct. App. | 1959
Lead Opinion
It has been said many times by this court that the essential elements of an alleged cause of action are simply a duty and a breach of it. Bell v. Fitz, 84 Ga. App. 220, 223 (66 S. E. 2d 108). As against a general demurrer, allegations of facts from which the existence of a duty may be fairly inferred and showing a breach of it are sufficient. In the instant case, the existence of the duty is sufficiently shown by the allegations respecting the execution of the contract sued on together with the allegations showing performance on the part of the plaintiff in advancing money to the corporation thereunder. These allegations when considered with the other allegations of the petition to the effect that the defendant Johnson took over com
Judgment reversed.
Dissenting Opinion
dissenting. It is to be kept in mind in determining the issues herein involved that this is not a suit ex delicto- by the plaintiff, Jack Broyles, as assignee of said Walton for damages claimed as the result of the wrongful conduct of the defendant Johnson relative to said corporation or to- the expulsion of Walton therefrom or the “kicking” him out of the same, but this is an action ex contractu for money claimed due
It plainly appears from the allegations of the petition, as twice amended, that the alleged indebtedness, if any, is on the part of the said Kirkwood Courts Apartments, Inc., in favor of Walton, and not by Johnson individually. The present suit is by Broyles as assignee of said Walton, against Johnson as an individual, purporting to be for money due by Johnson to Walton for breach of a contract, and on the petition, as amended, shows that the indebtedness, if any, arises out of money advanced to and for the benefit of said corporation, and not to Johnson. It is my opinion that the court properly ruled that there was no cause of action alleged in favor of Broyles against Johnson, the individual.
I do not think that the case of Niagara Sprayer & Chemical Co. v. Cotton States Fertilizer Co., 48 Ga. App. 779 (173 S. E. 460), is in the least applicable here. The plaintiff here is the assignee of a lawsuit in tort and not of any actual ex contractu indebtedness in favor of Walton against Johnson. This liability, if any, would be by the corporation in favor of Broyles, the assignor.
I think it follows that the trial judge did not err in sustaining the general demurrers, as renewed, to the plaintiff’s petition, as amended, the same being excepted to by direct bill of exceptions to this court.
I am authorized to state that Quillian, Judge, concurs in this dissent.