72 Ga. 92 (Ga. 1883), Bagwell v. Bagwell

Citation:72 Ga. 92
Opinion Judge:HALL, Justice.
Party Name:BAGWELL v. BAGWELL.
Attorney:J. T. DORTCH; W. R. LITTLE; S. P. THURMOND, for plaintiff in error. A. S. ERWIN; B. F. CAMP, for defendant.
Case Date:September 11, 1883
Court:Supreme Court of Georgia

Page 92

72 Ga. 92 (Ga. 1883)

BAGWELL

v.

BAGWELL.

Supreme Court of Georgia.

September 11, 1883

September Term, 1883.

1. Any fact showing that a contract is unfair, unjust, or against good conscience, will justify a court of equity in refusing to decree its specific performance.

2. The exercise of the jurisdiction of courts of equity to decree a specific performance or the recission of a contract, is not a matter of right in either party, but is a matter of sound and reasonable discretion in the court, which governs itself, as far as it may, by general rules and principles, but at the same time withholds or grants relief according to the circumstances of each particular case, when these rules and principles will not furnish any exact measure of justice between the parties.

3. Courts of equity will not decree a specific performance in cases of fraud or mistake; or where the decree would produce injustice; or where it would compel the party to an illegal or immoral act; or where it would be against public policy; or where it would involve a breach of trust.

4. A surviving member of a firm was also the administrator of the deceased partner; the firm and its members were insolvent; the firm and the deceased member were deeply involved; the complainant, as executor, sold land as the individual property of the decedent; it was bid off for defendant, who subsequently transferred his bid to complainant, upon condition that complainant would pay him a note which he held against the insolvent firm; a part of this amount has been paid. Complainant offered to complete the contract, and prayed for specific performance:

Held, that the bill was properly dismissed on demurrer. The contract set up would divert assets from the proper course of administration, and be a breach of trust and a constructive fraud. Partnership assets are primarily liable for firm debts, and individual assets for individual debts, in cases of insolvency and death.

Specific Performance. Partnership. Debtor and Creditor. Equity. Before Judge HUTCHINS. Franklin Superior Court. March Term, 1883.

J. M. C. Bagwell filed his bill against A. G. Bagwell, alleging, in brief, as follows: In 1873, J. Madison Bagwell and complainant were merchants in the town of Carnesville, Georgia, under the firm name of J. M. Bagwell & Son. On April 19, 1873, they borrowed from defendant $260.00, and gave...

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