95 Ga. 445 | Ga. | 1895
It. appeal's from the petition, that Ellis and his wife, having become heavily indebted as partners in a mercantile business, had themselves, together with a near kinsman, incorporated under the name of John Ellis Company, and in the corporate name bought goods from the petitioners and continued the business formerly conducted by the partnership, until they had discharged, out of the assets of the corporation, nearly all of their individual liabilities contracted as members of the partnership, and thereby rendered the corporation insolvent. The corporation then made an assignment of all its assets for the benefit of creditors, but enough was not realized from the sale of the assets to pay'the preferred creditors under the assignment, and the petitioners’
The grounds of demurrer are, misjoinder of parties plaintiff, improper joinder of parties defendant, want of a cause of action, insufficient allegations of fraud, insufficient allegations of the time of the creation of petitioners’ debts, and no allegations of the time of the misappropriation of the corporate assets.
We think the allegations of fraud were sufficient. The gravamen of the petition being the misappropriation complained of, and it being alleged that such misappropriation actually occurred and was in law a fraud upon the rights of petitioners, it was not essential that the declaration should set forth distinct acts of actual fraud on the part of the corporators in making the misappropriation. As against a demurrer alleging that there were “no allegations of the time of the misappropriation,” averments in the petition to the effect that the alleged misappropriation occurred between the 24th of October, 1892, and the'29th of August, 1893, were sufficiently specific; and the petition alleging that the debts due the petitioners were created between the dates above mentioned and that they bore interest from the date last named, the time of the creation of the petitioners’ claims
Judgment affirmed.