Ansley v. Hightower

Supreme Court of Georgia1904-07-14

120 Ga. 719

Summary · law.co

Holding. The judgment sustaining the demurrer was reversed. The petition set forth a valid contract with adequate consideration between the plaintiff and the defendant individually, and the tender of money requirement was excused because the defendant had made declarations equivalent to refusing acceptance before the tender deadline.

The plaintiff sued the defendant for breach of a contract to purchase stock. The defendant filed a general demurrer challenging the petition on multiple grounds, including that no money tender was made, the contract lacked consideration, it fell within the statute of frauds and should have been in writing, and that the proper party defendant was a partnership rather than the individual defendant. The trial court sustained the demurrer. The appellate court reversed, holding that the petition adequately stated a valid contract claim with sufficient consideration and properly identified the defendant as an individual rather than as a partner.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a petition alleging breach of contract must allege the contract was in writing when the contract falls within the statute of frauds
Whether a party must actually tender money when the other party has refused to accept it beforehand
Whether the contract was formed with the defendant individually or with a partnership

Procedural posture

The defendant demurred to the plaintiff's petition in the trial court, the demurrer was sustained, and the plaintiff appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Simmons, C. J.

1. The allegations in the petition set forth a contract based upon a sufficient consideration, and a breach thereof by the defendant.

2. The petition also showed that the contract was with the defendant individually, and not with a partnership of which the defendant was a member.

3. Where a petition declares upon a contract, it is not necessary, even though such contract is within the statute of frauds, to allege that it was in writing. Upon demurrer it will be presumed that the contract was in writing, unless the pleadings show the contrary. Walker v. Edmundson, 111 Ga. 455; Taliaferro v. Smiley, 112 Ga. 62.

4. A tender of money is excused where, before the expiration of the time therefor, the party to whom it is to be made makes declarations equivalent to a refusal to accept the tender if made. Biggers v. Pace, 5 Ga. 171; Baynes v. Bernhard, 12 Ga. 150 ; Hunt v. Formby, 43 Ga. 79; 25 A. & E. Enc. L. 904. Judgment reversed.

All the Justices concur.

The defendant demurred to the petition generally, and as follows : It does not appear that the plaintiff ever tendered to the defendant the money contracted to be paid for the stock, nor is there any tender in the petition, nor is there anything stated that waived compliance with the contract in this matter. The contract for the purchase for the stock was without consideration, was a nudum pactum, and can not be • enforced. The alleged •contract was never consummated; it was for the sale of goods in excess of $50, and therefore should have been in writing. It does not appear- that the plaintiff has ever complied with the alleged contract. The petition shows no right of action against High-tower ; but if any right of action is shown, it is against the partnership of Hightower & Heath. It appears that Hightower has been released by the action of the plaintiff, by a settlement with one of the partners. The court sustained the demurrer, and the plaintiff excepted.

Shipp & Kline and S. A. Roddenbery, for plaintiff,

cited, as to tender: Ga. R. 5/172(3,4); 29/294(4); 46/278(2); 97/443, 445; 12 Am. D. 296; 6 Wis. 127, s. c. 70 Am. D. 453 (1). Con sicleration: Civil Code, § 3657; Ga. R. 12/52-; 104/157 (1); 9 Cyc. 308, note 66. Contract to purchase shares in corporation need not be in writing: 105 Ga. 432 (2). Part performance took the contract out of the statute of frauds: Ga. R. 37/26; 38/232, 234; 42/207; 53/98 (2), 109; 90/416 (1),425. Demurrer not proper way to raise question as to statute. of frauds: Ga. R. 111/455, 457; 112/62 (3), 65.

Dessau, Harris & Harris and Pope S. Hill, for defendant.

The contract was with a partnership, and the partners should have been sued jointly: Civil Code, §§ 2635, 2638, 5009 ; 1 Lind. Part. *482; 2 Bates, Part. §§1049-50; 17 Md. 387; 60 111.454. Contract too indefinite: Civil Code, § 2693 ,(4). -The transactions covered too much time to ripen into such a contract: Civil Code, § 2693 (5). Contract was nudum pactum: 37 Ohio St. 339, s. c. 41 Am.. R. 507. Statute of. frauds applies to contract for shares in corporation: Pench’s Prec. in Ch. 533 ; Sel. Cas. Ck. (2d ed.) 113; 53 N. Y. 467; 15 Conn. 400,; 60 Me. 430; .2 Mo. App. 61; 3 Har. & J. (Md.) 38; 16 N. Y. W. Dig. 522; 38 Barb. 200; 158 N. Y. 617; 104 Fed. 219; 4 Fla. 359, 378; 72 N. Y. 595; 4 Rob. (N. Y.) 401; Reed on Stat. Fr. §234. Statute of frauds applies especially where neither stock nor corporation is in esse: 128 Mass. 388.