Briarcliff, Inc. v. Kelley
Decision Date | 11 September 1944 |
Docket Number | 14883. |
Citation | 31 S.E.2d 586,198 Ga. 390 |
Parties | BRIARCLIFF, Inc., et al. v. KELLEY et al. |
Court | Georgia Supreme Court |
Rehearing Denied Oct. 7, 1944.
Syllabus by the Court.
1. The court did not err in overruling the demurrers filed by the defendant, Briarcliff, Inc., on the grounds of misjoinder of parties plaintiff, and of parties defendant, and of causes of action, or as being multifarious; since the petition although filed by several different plaintiffs, whose rights in respect to the general subject of the case were distinct against several defendants, related to matters of the same nature, forming a connected series of acts, in all of which the defendants were more or less concerned. (Grice and Atkinson, JJ., dissent from this ruling and the corresponding division of the opinion.)
2. A fund cannot be impressed with an implied trust at the instance and in behalf of a party who made no contribution to the fund.
3. It was error, under the circumstances of this case, to enjoin one of the defendants, a solvent corporation, from enforcing its alleged lien against the property of the other defendant an insolvent corporation.
On July 17, 1943, Mrs. J. H. Kelley and three other women, in behalf of themselves and others similarly situated, filed a petition in Fulton superior court against Briarcliff Laundry, Inc. Briarcliff, Inc., Fulton National Bank, as trustee, and certain fire insurance companies. On July 22, 1943, the plaintiffs filed an amendment. To the petition as amended Briarcliff, Inc., filed a special demurrer, which asserted that the petition contained (a) a misjoinder of parties plaintiff, (b) a misjoinder of parties defendant, and (c) a misjoinder of causes of action, and was multifarious. The demurrer was overruled and exceptions pendente lite were preserved.
The suit was the outgrowth of a fire on June 17, 1943, which destroyed a laundry operated by Briarcliff Laundry, Inc., and in which the petitioners lots property stored in the laundry. Briarcliff Laundry, Inc., was insolvent, and it was sought to subject Briarcliff, Inc., a solvent corporation, to liability for reasons hereinafter stated. Briarcliff, Inc., had, on March 2, 1943, sold the laundry on credit to Briarcliff Laundry, Inc. The sale price was $400,000. The transaction was consummated by Briarcliff, Inc., executing a deed to Briarcliff Laundry, Inc., and the latter in turn executing to Fulton National Bank, as trustee, a trust deed securring the $400,000 in bonds, held by Briarcliff, Inc. This deed required Briarcliff Laundry, Inc., to carry $200,000 of fire insurance on the building and machinery, with loss payable to the Fulton National Bank, as trustee. At the same time, a bill of sale was executed by Briarcliff, Inc., to Briarcliff Laundry, Inc., conveying laundry equipment, supplies, good will, and other items. In June, 1943, a little more than a year after the sale, the laundry and contents were largely destroyed by fire. Upon the filing of the petition, an ex parte order was granted enjoining the defendants from collecting the fire insurance, and appointing a receiver to take charge of the damaged clothing and to collect the proceeds of the insurance policies. Subsequently, an interlocutory hearing, this order was continued in force. The case comes to this court with assignments of error: (a) as to the rulings on demurrers filed by the defendants; (b) rulings continuing the receivership as to the insurance funds, and restraining the defendants, Briarcliff, Inc., and the Fulton National Bank, as trustee, from the collection thereof; and (c) rulings as to the admissibility of evidence. Briarcliff Laundry, Inc., did not file any exceptions.
At the hearing before the trial judge, the evidence was in substance as follows: Briarcliff Laundry, Inc., was chartered, with a capital stock of $2500, immediately before its purchase of the laundry from Briarcliff, Inc. Its only stockholders were John H. Candler, its president, and Samuel Candler, its secretary. Both were sons of Asa G. Candler, Jr. Briarcliff, Inc., was owned by Asa G. Candler, Jr., and his family. Asa G. Candler, Jr., was president and owned the majority of stock, though John and Samuel were stockholders and directors, Samuel being a vice president. For some years before the sale of this laundry on March 1, 1942, by Briarcliff, Inc. (which for the sake of clarity will be referred to as the old company), to Briarcliff Laundry, Inc. (hereafter referred to as the new company), the old company owned and operated this concern as the 'Briarcliff Laundry.' The old company was solvent, owning other property. Following its purchase, the new company operated the laundry under the same name. After the fire the new company was insolvent.
It was shown that for many years before the sale the old company had operated the business under the trade name of 'Briarcliff Laundry,' had adopted an Old-English form of printing the name, and had in the main used this type for advertisement on their various pick-up stations, trucks, newspaper displays, stationery, and upon most of their printed forms, receipts, and contracts used in the business. There was evidence that, after the sale, the new company continued many of the signs and other advertisements just as they were at the time of the purchase, though some were changed by changing 'Briarcliff Inc.' to '' The old company had advertised 'Briarcliff Laundry,' and the new company continued to so advertise, without either company calling attention to the corporate name of the owner. It was shown that the new company had used laundry lists and stationery of the old company, which were printed 'Briarcliff Inc.,' although it also appeared that the new company had procured and used laundry bills, route-copy slips, laundry lists, memo slips, shirt bands, dry-cleaning memos, wet-wash bills, inventory sheets, releases for lost receipts, stationery, and dry-cleaning sacks, upon which appeared the name 'Briarcliff Laundry, Inc.' There was evidence that the old company had many properties operated under the name 'Briarcliff,' although there were other concerns using this name in which the old company had no interest.
The plaintiffs testified that they stored their fur garments and woolen garments with the laundry shortly before the fire, and lost them therein. For the fur garments they were issued a lithographed storage receipt signed 'Briarcliff Inc., per * * *' (signed by some one). In the corner of this receipt, in an itemized statement of the charges, appears 'storage & insurance, $ * * *' (and an amount stated). On the back of the receipt appears the following: 'Unless otherwise noted herein, the articles shall be insured by the undersigned against loss by fire or burglary.' To cover woolen garments, there was a receipt on yellow paper, with a provision for listing various articles, which was captioned 'Briarcliff Inc.' and was signed or initialed by some one, and which on the back contained this statement: The charge on both fur and woolen garments was two per cent. of the value. Each of the contracts for fur or woolen storage was made in April or May, 1943, and was signed by Doris R. Connally, Elizabeth Cohen, or A. Mayo. It was also shown that both the old company and the new company, during their operation of the laundry, had added to the charges on each package of laundry an additional charge of 'Fire insurance, .01.' Neither company carried any insurance to cover the customers' loss on the fur, or woolen storage.
The receiver testified: that there had been filed with him approximately 2500 different claims by persons claiming loss or destruction of their wearing apparel in the fire which destroyed Briarcliff Laundry; that the total amount of these claims aggregates over $150,000; that, while delivering wearing apparel to those customers who called for it, he examined between 400 and 500 storage receipts which were on a printed form captioned 'Briarcliff Inc.' at the top and signed in printing 'Briarcliff, Inc., per * * *' at the bottom; and that none of the receipts had the name 'Briarcliff Inc.' changed to 'Briarcliff Laundry, Inc.,' by rubber stamp, typing, or writing; nor was any other change made in signature.
Both the old company and the new company carried insurance in the sum of $1,000 by what was known as a 'Bailee Policy,' covering damage to customers' goods, the amount of which policy was considerably less than the average daily value of goods in their hands belonging to customers. The old company carried no other insurance.
One month after the fire, the new company mailed a second letter to such customers as had not reclaimed their property, advising that such articles were then held at the customers' risk, and unless reclaimed immediately the property would be disposed of for storage and other charges.
More specific reference to certain portions of the evidence will be made in the opinion.
James A. Branch, Thomas B. Branch, Jr., and Hirsch, Smith, Kilpatrick, Clay & Cody, all of Atlanta, for plaintiffs in error.
Mary J. Payne, Powell, Goldstein, Frazer & Murphy, Woodruff, Ward & Etheridge, M. Neil Andrews, U.S. Atty., Clifford Walker, A. L. Henson, O. L. Hathcock, John H. Hudson, Estes Doremus, Smith, Smith & Bloodworth, Carl F. Hutcheson, and J. S. Slicer, all of Atlanta, for defendants in error.
ATKINSON, Justice (after stating the foregoing facts).
1. The first question to be determined is, whether or not the petition as amended was subject to the special demurrer of Briarcliff, Inc., the old company, on the...
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