Angier v. Equitable Bldg. & Loan Ass'n

• Decision Date: 29 January 1900
• Court: Georgia Supreme Court
• Parties: ANGIER v. EQUITABLE BUILDING & LOAN ASS'N.

35 S.E. 64

109 Ga. 625

ANGIER

v.EQUITABLE BUILDING & LOAN ASS'N.

Supreme Court of Georgia.

Jan. 29, 1900.

PLEADING—ANSWER—TENDER—ACTION ON CONTRACT—FRAUD AS DEFENSE.

1. Allegations in a petition relating to a written instrument executed by a defendant, or to his own actings and doings, are not, without some explanation of his alleged ignorance concerning the same, properly met by a general averment that for want of sufficient information he is unable either to admit or deny the paragraphs of the petition in which such allegations are set forth.

2. A mere written proposal to pay money, with no offer of the cash, is not a tender.

3. That the maker of a plain and unambiguous written contract with a corporation was induced to execute the same by false and fraudulent representations as to its methods of doing business and as to the probable results of the transaction evidenced by such contract, is not a valid defense to an action thereon, when there is nothing to show that the maker was misled or deceived as to its contents, or in any manner prevented from ascertaining the same.

4. Allegations in an answer setting up alleged rights under the by-laws of a corporation are incomplete unless enough of such by-laws, either literally or in substance, be set out to enable the court to determine to what the defendant is entitled thereunder.

5. The questions in the present case not dealt with in the preceding notes were settled by the decision of this court in the case of Cook against the defendant in error, 30 S. E. 911, 104 Ga. 814.

(Syllabus by the Court.)

Error from city court of Atlanta; H. M. Reid, Judge.

Action by the Equitable Building & Loan Association against E. A. Angier. Prom order sustaining demurrer to his answer, defendant brings error. Affirmed.

A. R. Bryan and Robt. Zahner, for plaintiff in error.

J. Howell Green, for defendant in error.

LUMPKIN, P. J. The Equitable Building & Loan Association brought in proper form against Edgar A. Angier, one of its members, upon whose stock an advance had been made, an action for alleged breaches of a bond which he had executed and delivered to the plaintiff, and which was of the character usually required in such cases. He filed a voluminous answer, which was stricken on demurrer, and of this he complains in his bill of exceptions. We will briefly state and dispose of the questions thus presented for our determination.

1. The petition alleged that Angier was a member of the association; that, as such member, he owned eight shares of stock of a specified class, evidenced by a certificate; that he secured an advance of $800 upon this stock; that, to secure the repayment of the advance, he hypothecated his eight shares of stock to the association; and that, as further security, he executed and delivered the bond sued on. The substance of the bond was set forth in the petition, and a copy of the same was attached as an exhibit The tenth paragraph of the petition was as follows: "That the by-laws of said association provide that all members in arrears in payments on their stock shall pay to said association a fine of ten cents per share on each share of stock so in arrears for each month of such arrears." The defendant in his answer, averred that he could not for want of sufficient information, either admit or deny the foregoing allegations, save only as to the fact that he received the advance of $800, which was admitted. Certainly, this much of the answer was without merit. As the allegations in question related to a written instrument executed by himself, and to matters of which he must, in the nature of things, have had personal knowledge, and as his answer set forth no explanation of his professed ignorance, the ruling of this court in Smith v. Champion, 102 Ga. 92, 29 S. E. 160, is applicable, and controlling here. As will appear below, the defendant, in portions of his answer, undertook to state what the by-laws of the association contained with reference to certain matters, and it is therefore difficult to perceive how he could have been lacking in information as to the truth or falsity of the statements made in the tenth paragraph of the petition. And it is proper to add that, taking the answer as a whole, we do not understand how the defendant could have failed to know all about the several matters above mentioned.

2. It was alleged in the answer that the defendant had made a calculation, from which it appeared that he owed the...