60 Ga. App. 496 | Ga. Ct. App. | 1939
Lead Opinion
A. J. Floyd brought an action against H. D. Morgan, to recover money on a written promise which was appended to the petition and made a part thereof, as follows:
“For and in consideration of three hundred ($300) dollars in hand paid to the undersigned, by H. D. Morgan, receipt of which is hereby acknowledged, the undersigned, A. J. Floyd, does agree and bind himself, his heirs, executors, and administrators, that he will sell, transfer, and convey good and sufficient right, title, and interest to and for the following described property to the said Morgan, to wit: All his contract, rights, and leases with Sinclair Refining Company, that of warehouses and filling-stations in Floyd
The defendant filed a general demurrer to the petition, which the court overruled, and the defendant in his cross-bill of exceptions complains of this judgment. We therefore will first take up the objections raised in the cross-bill of exceptions. Yery briefly, the allegations of the petition relating to the option to purchase the agency of the Sinclair Defining Company, which option • is quoted above verbatim, are that the defendant gave notice that he desired to exercise the option; that the plaintiff complied with all the terms of the option; turned over and delivered to the defendant all the warehouses and filling-stations in Floyd County, Georgia, and transferred and assigned such leases and contracts as he had, including leases on warehouses and filling-stations, agency contracts, consignment contracts, and all other contracts, and also delivered to the defendant two Dodge trucks and other property.
According to the common-law form, where the plaintiff brings his suit on assumpsit, he may plead a count on the contract and a count on quantum valebant. Assumpsit is not maintainable without showing the existence of a contract expressed or implied between the parties. “Special assumpsit. When the right to recover is based upon an express contract the action is special assumpsit. General assumpsit is the form used when the right to recover is based upon an implied promise without regard to whether or not there was an express contract. Common counts. To this class belong the common counts, which are based on a promise, express or implied, to pay money in consideration of a preceding and existing debt. These are the indebitatus count, under which could be inserted a count for the price or value of real property sold by the plaintiff to the defendant; the quantum meruit; the quantum valebant; and the account stated. The quantum meruit and the quantum valebant counts are seldom used, for the indebitatus count covers the ground.. Account stated differs from the action of account in that the account sued on is balanced and the amount agreed on before action brought.” Gould on Pleading, 48. Our Supreme Court has said: “Where the terms of a special agreement have been performed on one side, and nothing is to be done on the other but to make a money payment, such payment may be enforced by indebitatus assumpsit. . . Where goods have been supplied under a special agreement, but not in conformity thereto, compensation may, nevertheless, be enforced by action of general assumpsit, if the defendant has retained and enjoyed the benefit of what was actually furnished.” Hancock v. Ross, 18 Ga. 364.
John A. Jones, member from Paulding County, introduced in the General Assembly of this State a bill, the caption of which stated that its object was “to simplify and curtail pleadings at law,” which was enacted into a law in 1847, and “makes a writ or complaint, in the form which it prescribes, a sufficient writ, in all eases within its provisions.” Cameron v. Moore, 10 Ga. 368. See
“Georgia, County. To the Court of said County.
“The petition of (A. B.) sheweth that (C. D.) of said county, is indebted to him in the sum of dollars, besides interest, on a dated and due , which said the said (C. D.) refuses to pay: Wherefore your petitioner prays process may issue requiring the said (C. D.) to be and appear at the next court for said county, to answer your petitioner’s complaint.
“Provided, nevertheless, that when any defendant shall, at the appearance term of such cause, demand oyer of any note, bill, bond, receipt, or other instruments sued on, the plaintiff shall be compelled to produce the same to the defendant for the purpose of examination.”
Section 7 of this act is as follows: “And be it further enacted, that no departure from the before prescribed forms shall work a nonsuit, provided the plaintiff shall plainly and distinctly set forth his cause of action.”
Analogizing the complaint in the instant ease, under the statute of 1847, to an action of assumpsit at common law, it contains one single count, and is a suit filed on a written contract, with the contract appended and attached to the petition as an exhibit, and alleges written promise to pay. We think the pleader has brought - himself within the third section of the act of 1847; and a count on quantum valebant, being a proper count in a declaration in assumpsit, would be presumed, and is by legal contemplation in the complaint by virtue of said legislative act, and the plaintiff can prove quantum valebant by the will of the legislature as fully as he would be able to do if the declaration contained all the counts known to the law of pleading, one of which is of course the count of quantum valebant. Cameron v. Moore, supra; Blue v. Ford, 12 Ga. 45, 46.
This act of 1847 is still the law of this State, and, when one of its
The tendency in this country, even at the present time, seems to be to do the very thing that the caption of the act of 1847 said that the legislature was attempting to do; that is, “to simplify and curtail pleading at law.” Pleading is the guide and compass by which the judge is asked by the parties to direct and steer the case, good pleading being the rules which, if correctly applied, would produce the proper issues. The court should be careful, and so construe the pleading as to allow the case kept in the deep channels of substance, so that the haven of real truth may be safely and quickly reached, and should not construe the pleading so that the ascertainment of the truth will be impeded or wrecked in the shoals and shallows of fictitious technicalities. Form should yield to substance. In the instant case the plaintiff sued on the contract and set out the facts as they existed, and the pleaded facts set out a right to recover, based on a written promise as well as on a right to recover, if proved, on an implied promise for “goods had and received.” The petition, being well brought under Jones’ forms, is good; and if the plaintiff proved either that the defendant complied with the conditions precedent in the option and executed the same, or if he proved that he received goods described in the option, and there was nothing left to do but for him to pay the value thereof, he could recover in quantum valebant “goods had and received.” The judge did not err in overruling the general demurrer, and the objections in the cross-bill of exceptions are without merit.
We come now to the questions raised in the main bill of ex
Up to this point in his testimony the plaintiff had said nothing with reference to the defendant’s son. The defendant, being put on the stand by the plaintiff for the purpose of cross-examination, testified that the reason he could not go through with the trade was that the Befining Company did not wish to have as its agent a man who was a dealer in automobiles. Certainly, up to this point, the testimony does not show that the defendant had received any of the goods named in the option. The testimony of the plaintiff shows that sometime later, either that day or the next, the company made a eontraqt with the defendant’s son to act as its agent in Floyd County. The mere fact that he turned down the option for the above-stated reason or reasons (that is, that the company would not accept him as agent, or the defendant thought the price was too high) and the company then made a contract with the son, does not authorize a finding of fraud and deceit. The petition alleges that both the plaintiff and the defendant authorized
It is well here to pause and ascertain the meaning of an option. 13 C. J. 336, § 183, states: “An option founded on a consideration is a unilateral agreement binding, from the date of its execution, on the party who executes it; and it becomes a contract inter partes when exercised according to its terms.” In the option in this ease, payment was to be made at the defendant’s option, not at the plaintiff’s and the contract was null and void if the defendant did not exercise his option and make payment. There
Conceding that the conversation took place as stated, the defendant had a right'thereafter to refuse to exercise the option for whatever reason (not, of course, a fraudulent or illegal one) he saw fit. In fact, he did not have to give a reason if he did not desire to do so. Whether his reasons were wise or foolish, or whether he would forego the exercising of his option in order that a son might negotiate for the agency, or that any one else might negotiate for the same, or merely because he did not care to exercise his option, it was immaterial why he did not exercise his option. The question was, did he exercise his option, or was the property described in the option received and retained by the defendant under the agreement and the benefits enjoyed by the defendant even though not in conformity with the agreement? Of course the defendant could not deceive and defraud the plaintiff out of his goods or propertjr by using the option as a part of a fraudulent scheme, and not subject himself to damages. The testimony having failed to show that the defendant himself, or through his authorized agent, exercised the option or received for his benefit the property or goods described therein, the nonsuit was properly granted.
Certain letters were offered in evidence in toto, without stating any particular purpose for which they were tendered, and certain parts of the letters recited facts which were simply self-serving declarations of great import to the plaintiff's case. It was not reversible error to sustain the objection that the letters were recitals of fact, and were simply self-serving declarations.
Rehearing
ON MOTION EOR REHEARING.
Tbe option provided: “But if such payment is not made on or before such time [twelve o’clock noon, central standard time, July 31, 1937], time being of the essence of the contract, this agreement is mill, void, and of no effect, and shall expire and be binding on neither party.” This provision is one that time is of the essence of the contract, and a promise by the optionee to pay the money is not a fulfillment of the condition, but the money must also be paid or tendered within the time specified. Lockman v. Anderson, 116 Iowa, 236 (89 N. W. 1072); Winders v. Kenan, 161 N. C. 628 (77 S. E. 687). See the definition of option in Black v. Maddox, 104 Ga. 157, 162 (30 S. E. 723). Williston, in his latest edition of his work on contracts, said: “Where an option is conditional upon the payment of a sum of money, a promise by the offeree to pay the money is not a fulfillment of the condition, and therefore not an acceptance of the option. Nor is an option to purchase certain property conditional on payment of the purchase-price accepted by the optionee’s appropriation of the property.” 1 Williston on Contracts (rev. ed.), 218, § 75. See also 3 Williston on Contracts (rev. ed.), 2390, § 853 (note 3, 4). We can not feel but that we were correct when we stated in the third headnote that “The option contract in the case at bar contains an express provision to the effect that the optionee had to pay the stated price as a condition precedent to his right to demand delivery.” The motion for rehearing is overruled on each and every ground.
Behearmg denied.