45 Ga. App. 555 | Ga. Ct. App. | 1932
Campbell Tile & Mantel Company brought its declaration in attachment, in four counts, against S. A. Lynch Enterprise Finance Corporation, to recover $7,764.80, with' interest thereon at seven per cent, per annum from May 1, 1927. During the trial of the case the court refused to admit evidence presented by the plaintiff, and on one occasion refused to declare a mistrial; and timely and appropriate exceptions were taken to these rulings. At the conclusion of the evidence, the court granted a nonsuit, and exception was taken to this ruling.
In count 1 it is averred: that the defendant is indebted to the plaintiff as above stated on a promissory note dated February 1, 1927, and due May 1, 1927; said note being “executed by the defendant in the trade name and fiction of East Coast Enterprises Inc. [a dummy corporation owned, controlled, managed, and operated by the defendant and used as a conduit or instrumentality for the execution and delivery of said note], and, for value received, delivered to plaintiff.” This count (as well as each of the other counts of the declaration) avers also that “plaintiff did, on April 19, 1930, sue out an attachment against defendant, returnable to the July term, 1930, of.said court, which said attachment was duly levied by service of summonses of garnishment upon the First National Bank of Atlanta, Fulton National Bank, and the Citizens & Southern National Bank.”
Count 2 is an action upon the same note described in the previous count, and is substantially as follows: That on or about March 25, 1926, the Bealty Construction Company was indebted to plaintiff in the sum of $8,957 for labor and material furnished by plaintiff under a contract made between them on June 22, 1925, for the job of furnishing tile and marble work in the certain hotel building known as the Columbus Hotel, at Miami, Fla.; that at said time the payment of said indebtedness, although demanded, having been refused, plaintiff was entitled, and proposed to pursue, its remedies for the collection thereof, and for the enforcement of its lien for the labor and material so furnished as aforesaid, which, under the laws of Florida, had attached to said hotel building and grounds or leasehold upon which it stood; that at said time the de
The bracketed words in the two foregoing counts appeared in the petition as originally drawn, but by amendment those words were stricken.
Count 3 avers that the defendant “is indebted to it [plaintiff] in the sum of $7,764.80, with interest thereon at the rate of 7% per annum from May 1, 1927, by reason of the following facts: That on June 22, 1925, the East Coast Enterprises Inc., a corporation organized under the laws of Florida, through the Eealty Construction Company, made with plaintiff a contract for the tile and marble work in a certain bulding then being constructed by the East Coast Enterprises Inc., and known as the Columbus Hotel, at Miami, Fla., and in accordance with the terms, specifications and conditions thereof, for the sum of $55,500 for the labor and material thereunder furnished; that at said time and place, Y. F. Freeman, defendant’s vice-president and executive manager, was in charge and control of the activities of said East Coast Enterprises Inc., as vice-president and manager thereof, and in its behalf caused the Eealty Construction Company, as its agent, to execute said contract, as aforesaid; that under the immediate supervision of said Freeman, acting as the managing director of defendant as well as of said East Coast Enterprises Inc., as aforesaid, the plaintiff
In lieu of setting out count 4, we quote from the brief of counsel for the plaintiff in error as follows: “The third and fourth counts differ in that, whereas in the third count the original indebtedness is alleged to have been against the East Coast Enterprises Inc., the owner of the hotel, the Realty Construction Company, the contractor, is in the fourth count alleged to be the original debtor. There is, however, no substantial difference between the two counts in so far as is concerned the defendant’s liability, since, in each event, the defendant’s promise to see to it that the balance due plaintiff for labor and material furnished on said building, as evidenced by the note of the East Coast Enterprises Inc., is paid, rests upon ample consideration.”
The note declared upon in the first two counts, and referred to in counts 3 and 4, is attached to the petition as an exhibit. It is dated February 1, 1927, and is due May 1, 1927, bears interest from
“East Coast Enterprises, Inc.
“By R. E. Laramore, Viee-Pres. (Seal.)
“By J. M. Erazer, Treasurer (Seal.)”
General and special demurrers were filed to each of the four counts of the petition; the petition was amended as hereinbefore indicated; and the demurrers were overruled. This ruling was not excepted to.
In answering count 1 the defendant admitted that it had not paid said note, admitted that an attachment was sued out against the defendant, put the plaintiff upon proof of the other material allegations of the petition, and pleaded non est factum. By amendment to count 3 the defendant pleaded as follows: “The defendant denies that any promise was made by it to pay the note of East Coast Enterprises Inc., . . or any note whatsoever of East Coast Enterprises Inc.; but says that if there had been any such promise, it was a promise required by . . the statute of frauds to be in writing, because such a promise would be the promise to answer for the debt, default, or miscarriage of another person, and by the terms of the statute of frauds a promise to answer for the debt, default, or miscarriage of another person is required to be in writing and can not be enforced unless such promise is in writing.” The answer to count 2 is substantially the same as that to count 1, and the amendment to count 4 invoking the statute of frauds is identical with that made to count 3. The defendant’s answer to count 3 admits that it did not pay the alleged indebtedness, admits the suing out of said attachment, puts the plaintiff upon proof of the other material allegations of the count, and further pleads that the “note sued on . . is not the act and deed of this defendant . . , was not executed by the defendant nor any one authorized by this defendant to execute it in its behalf, nor by any officer or agent of this defendant.” Defendant’s answer to count 4 is essentially the same as its answer to the preceding count.
Plaintiff introduced in evidence the defendant’s charter, from which it appears that the defendant was a Delaware corporation, with power “to guarantee the evidences of indebtedness created by any other corporation:;” that the defendant could “make and perform contracts of every kind with any person, firm, or corporation;”
C. P. Campbell, sworn for the plaintiff, testified: that he had been the plaintiff’s president since 1914; that on June 22, 1925, “plaintiff, through its secretary, executed a contract with Eealty Construction Company to furnish the tile and marble work on the Columbus Hotel building, at Miami, Fla., for the sum of $55,500;” that “this contract was practically completed on March 25, 1926;” that “Mr. Freeman was there” and “gave us instructions to do different things;” that when the job was practically completed witness “went to the Eealty Construction Company to straighten up the matter,” and “Mr. Thweatt, of the Eealty Construction Company” told witness “to see Mr. Freeman;” that “Mr. Thweatt and I came to an agreement as to the amount due the plaintiff;” that “the balance was around $11,000, according to the records of the Eealty Construction Company;” that “Mr. Freeman told me to come to defendant’s offices . . , and when- I got in Mr. Freeman’s office Mr. Palmer and I straightened it up;” that witness did not know what position Palmer held, but that he was “around on the job, . . was with the hotel;” that witness and Freeman “arrived at . . $8,957 as the balance due plaintiff;” that “we
The witness Campbell then identified the following paper:
“Campbell Tile and Mantel Co., Miami, Fla. March 25, 1926.
“Gentlemen: We are handing you herewith our check No. 152, drawn on the Bank of Bay Biscayne, in the amount of $957, and note for $8,000, dated May 1, 192-6, and due Aug. 1, 1926, bearing interest at the rate of seven per cent, per annum, which check and note constitute settlement in full on account of work which you have done on Columbus Hotel and Exchange Building. It is hereby distinctly understood and agreed that upon maturity of this note, if we do not care to settle in full, we have the option of paying $2,000 and renewing the balance for a period of ninety days.” (The paper further provides for two other renewals at the expiration of ninety-day periods, the last time for renewal being Feb. 1, 1927). Very truly yours,
“East Coast Enterprises Inc., by T. F. Freeman, Vice-president.
“Accepted: Campbell Tile & Mantel Co., By C. P. Campbell.”
We quote from the testimony of the witness. C. P. Campbell as follows: “He [Freeman] said that the S. A. Lynch Enterprise Finance Corporation was interested in collecting the rents and making the disbursements of it, and that ‘we’ll see that you get your money.’ As to what was said about the check . . and the note and any renewal of the note, it was stated that he would see to it we would get our money and how it was to be paid. I have never received any money since that time except a payment of $500 on the first renewal of the note, and the last renewal included principal and interest on the preceding renewal, being the amount of the note. Campbell next testified that certain renewal notes were given, in line with the scheme set out in the letter, quoted above, the final renewal note being the one declared upon in counts 1 and 2. We quote further from the testimony of the witness Campbell as follows : “At the time I got the note dated May 1, 1926, I also got the check of the East Coast Enterprises' Inc. for $957. The cheek . . was signed by T. W. Palmer, President-Treasurer,
It next appears from the record that “plaintiff introduced in evidence the minutes of a meeting of defendant’s directors held in Miami, Fla., on January 28, 1925, evidencing the passage of a resolution authorizing the execution by defendant’s officers of a contract guaranteeing the installation of furniture in the Columbus Hotel Building.” It appears from said minutes that “the chairman submitted to the meeting a lease proposal between the Miami Holding Company, lessor, and the East Coast Enterprises Inc., lessee,, for a term of ninety-three years, covering all” of described lots and the Columbus Hotel, which was erected on said property. Said resolution recites that “inasmuch as the Miami Holding Company has this day guaranteed the installation of the furniture in the hotel to be erected on” said lot, “and that it is to the best interests of this company to see that said furniture is installed, . . the officers of this company are hereby authorized to negotiate for and in behalf of this company such instrument, or instruments, as may be necessary to effect such guarantee.”
We quote further from the record as follows: Plaintiff introduced in evidence the contract executed by and between the Miami Holding Co., and S. A. Lynch Enterprise Finance Corporation, as “Guarantors,” with the G. L. Miller & Co. Inc., designated therein as the “Underwriter,” dated May 28, 1925, for the installation of furniture in the Columbus Hotel Building. The contract referred to recites that “by virtue of the financial interest of such guarantors in the construction by the East Coast Enterprises Inc.” of said hotel “to be erected . . on a ninety-three year leasehold interest” in described land located in Miami, Fla., “and in further consideration that the making of this guaranty was the
It next appears from the record that the plaintiff introduced in evidence “a stipulation, made between counsel for the parties litigant, that a second mortgage bond issue for $600,000, secured by a mortgage on the leasehold interest held by the East Coast Enterprises Inc. from the Miami Holding Company upon the Columbus Hotel site, and upon the Columbus Hotel building erected thereon, was executed by the East Coast Enterprises Inc. on March 5, 1926, and that on the same date the defendant purchased the said $600,000 of bonds . . for $480,000.”
H. M. Thweatt, sworn for the plaintiff, testified as follows: "I am and was connected in 1925 and 1926 with the Eealty Construction Company. On May 7 and June 2, 1925, it contracted with the Miami Holding Company and East Coast Enterprises Inc., for the building of the Columbus Hotel, Miami, Fla. Plaintiff completed its contract with us, dated June 22, 1925, during the early part of 1926. Freeman and Campbell came to my office when the note was delivered. At that time a formal waiver of lien for the labor and material furnished by Campbell Tile and Mantel Company was executed to the Eealty Construction Company, East Coast Enterprises Inc., and G. L. Miller & Co. This lien waiver was in the usual form of waivers, and covered all material and labor furnished by plaintiff on the job.” On cross-examination Thweatt swore: "The East Coast Enterprises Inc. was putting up the Columbus Hotel. The Eealty Construction Company was the contractor, . . acting as agent for the East Coast Enterprises Inc. and the Miami Holding Company.”
T. W. Palmer, sworn for the plaintiff, testified: "I was con
We continue with the testimony of T. W. Palmer: “There was
It further appears, from the testimony of the witness T. W. Palmer, that he thought that E. E. Laramore or J. M. Erazer, under his direction, conducted the correspondence as to the renewal of the notes between the East Coast Enterprises Inc. and plaintiff; that the assets of the East Coast Enterprises Inc. were in the hands of a receiver; that Mr. Lynch told witness “to tell them to write the re
Complaint is made by the plaintiff that the court erred in excluding from the jury the letter written to S. A. Lynch by T. W. Palmer on February 23, 1924, hereinbefore substantially set out, and marked “Plff.’s Exhibit AA.” As a part of this assignment of error it is also averred that the trial judge erred in rejecting the following testimony of the witness T. W. Palmer: “He [S. A. Lynch] told me he always dealt in the name of the S. A. Lynch Enterprise Finance Corporation or other organized corporations which' were owned by the Finance Corporation—that he was representing the Finance Corporation. He went on at great detail to tell me how the Finance Company stock was split up, and he had Mr. Freeman and Holcomb in it with him, . . that he had kept control of the Finance Company. He owned something over 30,-000 shares of 60,000 in the Finance Corporation, and was going to carry it on in that way; that h'e would have Mr. Holcomb to come down later on and set up the books, and they would figure out how they were going to carry on after they came down.” The record recites that “as a ground for the said evidence, oral and documentary, . . plaintiff’s counsel” made the following statement to
In order to show the contention of the plaintiff in error fully, we quote as follows from the record: “Mr. Jones: May I state . . that while it is true that mere stock ownership of a corporation doesn’t merge the identity of the corporation with the owner, yet . . if, through the ownership of the stock in a corporation, you use it not in the ordinary and normal manner in which a corporation should be used, by participating as a stockholder, and in functioning as such, but you use it as a fiction, that you use it as a means behind which to conduct your own trades and transactions, thus getting the benefit of building this building and the benefit of supplies furnished by this plaintiff without paying for them, then that is legal fraud at least, and the courts will go behind the corporate entities to determine whether or not it was really functioning as a corporation, or merely used by it as a mere trade name
The foregoing ground is quite long, but, after examining it carefully in the light of the pleadings, we are satisfied that the court ruled properly, and so hold.
Exception is also taken to the court’s ruling excluding the following testimony of C. P. Campbell, the plaintiff’s president: “Mr. Freeman said they didn’t have enough money to pay us—that he would pay part cash and give me a note of the East Coast Enterprises. I asked him how much note he expected to give. He said $8,000; and I told him. I didn’t know anything about the East Coast Enterprises, whether it was good or not—I hadn’t looked into it and didn’t know. Mr. Freeman said the note was perfectly good; that S. A. Lynch Finance Corporation was collecting the rents,' handling the funds of the East Coast Enterprises, and that, ‘We’ll see that the note is paid’; and I said that was satisfactory.” We think that the rejection of the foregoing testimony was proper, and so hold. It appears next that when the foregoing testimony was offered, and before it was excluded, counsel for defendant objected to the following part of it: “We’ll see that the note is paid.” After some colloquy between counsel and the court, the court ruled: “I think this agreement is contemporaneous with the execution of the note; I think it is inadmissible.” ' We agree with the court, and hold that the ruling was correct.
It appears from the next ground that the court ruled as follows in regard to certain oral and documentary evidence: “I am going to exclude all evidence that would tend to show a fictitious corporation. The suit is based upon the idea that it was a bona fide corporation.” Counsel’s statement of what he expected to prove covers more than a page of closely type-written matter, and we shall not attempt to set out that statement here. We hold that the court ruled correctly in disallowing the evidence.
It is next insisted that the court erred in refusing to grant a mistrial because, when the court suggested that counsel might agree upon what the witness T. W. Palmer would testify to, counsel for the defendant remarked in the presence of the jury: “No, I don’t know what he will swear; he is liable to say anything.” The court overruled the motion in this language: “I’ll overrule your motion
The exceptions to the court’s various rulings upon the admission of evidence are, from their very nature, difficult to discuss fully and clearly. We have endeavored to indicate the nature of those exceptions, without unduly prolonging this opinion. As indicated above, we are of the opinion that there is no merit in any of those exceptions.
We come next to pass upon the nonsuit. In the first place, it is insisted that the defendant’s pleadings did not raise the question that the undertaking declared upon was one to answer the debt, default or miscarriage of another, and was therefore within the statute of frauds. That part of the plea relating to the statute of frauds may not have been perfect, but there appears to have been no demurrer to it, and in this situation we think it sufficiently raises the question sought to be raised by it. The plea has been hereinbefore fully set out, and will not be repeated here. We have also undertaken to present the substance of the evidence that was admitted upon the trial of the case. It clearly appears from the record that S. A. Lynch Enterprise Finance Corporation, the defendant in the court below, Campbell Tile & Mantel Company, the plaintiff in the trial court, East Coast Enterprises Inc., the apparent signer of the note declared upon in counts 1 and 2, the Realty Construction Company, and the Miami Holding Company, were all incorporated entities.
In so far as counts 1 and 2 are concerned, we are satisfied that the note declared upon was not shown to be the obligation of the defendant corporation. Furthermore, while there was considerable testimony in regard to this note, we are unable to find from the record that the note itself was ever introduced in evidence. Therefore, we hold that the nonsuit as to counts 1 and 2 was properly granted.
In F. & W. Grand &c. Stores Inc. v. Eiseman, 160 Ga. 321 (127 S. E. 872), the following rule is laid down: “Writings relied upon to take a transaction out of the statute of frauds must be complete in themselves, and must contain the entire agreement, and must disclose the subject-matter, the parties thereto, and all the terms of the undertaking.” Of course, “a promise to answer for the debt,
Judgment affirmed.