33 S.E.2d 568 | Ga. Ct. App. | 1945
Lead Opinion
The benefits furnished to the plaintiff by the defendant rendered the contract in question enforceable; the court did not err in overruling the demurrers to the defendant's plea and in allowing the introduction of evidence on the trial in support of the plea. The judgment in favor of the defendant was authorized under the law and the facts, and the court did not err in overruling the motion for new trial.
The general demurrer attacked the agreement set up in the defendant's answer on the ground that the corporation was not a party to the agreement, although it was entered into for the corporation's benefit; that it was without consideration as to the corporation; that Dr. Brown was not in privity with the corporation, and that no trust was created for the corporation. The special demurrers attacked the allegations in the answer referring to the agreement on the grounds that the agreement was incomplete, in that the parties had not attached their signatures thereto under their seals, and because the assent of the proposed new board members was not evidenced by their signatures on the face of the agreement; and that said agreement was against public policy, was a nudum pactum, and was lacking in a necessary party. We do not deem it necessary or profitable to elaborate on the grounds of the demurrers, or to set out in detail the substance of the other special demurrers. The plaintiff has raised in her motion for new trial, and has argued in this court, only those questions presented by her objections to the agreement set up as a defense by the defendant. Since the controlling questions raised by the demurrer and by the alleged errors in the trial are the same, it is necessary only that *261 we decide whether the agreement was properly allowed as a part of the answer.
The agreement between Mrs. Stevenson and Dr. Brown related to the business of the corporation, the operation of a mission for men. At the time they made the agreement Mrs. Stevenson was the secretary and treasurer, and was a member of the executive committee of the corporation, and had charge, "largely," of its operations, and Dr. Brown was a director. The object of the agreement was to better carry out the purposes and plans of the corporation, and it was made for the benefit of the corporation, and the evidence tended to show that benefits inured to the corporation. The plaintiff also received benefits under the agreement in that payments of $40 per month were made to her on a second mortgage held by her. The effect of the defendant's plea in setting up the agreement under which the plaintiff relinquished or released the $3800 claim against the corporation was that she was estopped from asserting it. It must be remembered also that the whole project was an eleemosynary enterprise, a mission of mercy and helpfulness to indigent men, and it was not contemplated that any of those interested in it would derive profit or gain from its operation.
"An agreement capable of an interpretation which will make it valid or legal will be given such interpretation if the agreement is ambiguous." 12 Am. Jur. 793, § 251. "The power of the courts to declare a contract void for being in contravention of a sound public policy is a very delicate and undefined power, and, like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt." Equitable Loan Security Co. v. Waring,
We have carefully considered all of the authorities cited by counsel for the plaintiff. They do not hold contrary to the principles we have referred to, and some of them sustain our rulings herein. See Sybilla v. Connally,
Judgment affirmed. Sutton, P. J., concurs.
Dissenting Opinion
Assuming that the corporation could set off the contract on the theory that it furnished the consideration, what the corporation did furnish was not in law a consideration. The so-called consideration for which Mrs. Stevenson promised to make a gift of $3800 was that at the end of one year the new corporation should be functioning and the financial status should be as good or better than as of the date of the contract, and that *263 there should be no defaults in the payment of the first and second mortgages. These were duties which the corporation was legally bound to perform in any event and could not constitute a consideration for a promise whether the corporation agreed to perform them or whether its performance of them was the condition of action to be taken advantage of by another. Furthermore, on its face the agreement shows that there is a mere promise to make a gift. The very language used shows that this part of the agreement was not made as a contract, and that the obligations to be performed by the corporation were not dealt with as a consideration. "Nothing is consideration that is not regarded as such by both parties." And as "one does not commonly pledge one's self to generosity in the language of a covenant," so one does not pledge himself to binding legal obligations in the language of generosity. I am of the opinion that the promise to make the gift was not intended to be binding as a contractual obligation, and that if it was it was without consideration.