Broyles v. Johnson, 37487

• Decision Date: 20 January 1959
• Docket Number: No. 37487,No. 1,37487,1
• Citation: 107 S.E.2d 851,99 Ga.App. 69
• Parties: Jack BROYLES v. Herbert JOHNSON
• Court: Georgia Court of Appeals

Page 851

107 S.E.2d 851

99 Ga.App. 69

Jack BROYLES v. Herbert JOHNSON.

No. 37487.

Court of Appeals of Georgia, Division No. 1.

Jan. 20, 1959.

Rehearing Denied Feb. 5, 1959.

Syllabus by the Court

The plaintiff's petition failed to set forth a cause of action and the trial court did not err in sustaining the defendant's general demurrer thereto.

Jack Broyles, as assignee of H. G. Walton, sued Herbert Johnson to recover for an alleged breach of a written contract entered into between Johnson and Walton. The contract on which the action was based was as follows: 'Georgia, Fulton County; This agreement made and entered into this the 15th day of March, 1952, between H. G. Walton, first party, and Herbert Johnson, second party; Witnesseth--Whereas, the parties hereto are owners of real estate on Kirkwood Road on which they are building a 32 unit apartment building, and Whereas, they are the sole owners of the stock of the corporation known as Kirkwood Court Apartments, Inc., it is agreed as follows: 1. The balance of $1,500 of the permanent loan above the construction cost shall be paid to S. Walton Peabody, architect. The balance of $2,500 of his fee shall be paid by H. G. Walton out of his share of the earnings of profits of the corporation. 2. When the apartment house is completed the first sums collected shall be applied to repay H. G. Walton $1,160 advanced by him and $2,820.95 by Herbert Johnson, together with any future advances. 3. As the parties hereto each own one-half interest in the apartment they shall divide all profits therefrom equally and shall own stock equally. This agreement does not effect the sum due by first party to the second party.' Such contract was signed by H. G. Walton and Herbert Johnson.

To the petition as amended the defendant, having demurred generally, renewed his general demurrer which the trial court sustained, and it is to this judgment that the plaintiff now excepts.

Jack Broyles, Glyndon C. Pruitt, Atlanta, for plaintiff in error.

Johnson, Hatcher & Meyerson, Henry M. Hatcher, Jr., Atlanta, for defendant in error.

NICHOLS, Judge.

In Broyles v. Kirkwood Court Apts. Inc., 97 Ga.App. 384, 103 S.E.2d 97, it was held that the contract here sued on was a contract between the parties signing said contract and was not, and could not be construed as being a contract ratified by the corporation. In that case the plaintiff was seeking to recover from the corporation for items 1 and 2 of the quoted contract. In the present case the plaintiff is seeking to recover from the defendant the profits referred to in item 3 of such contract.

While this court cannot take judicial notice of the record in another case, Georgia Casualty & Surety Co. v. Reville, 95 Ga.App. 358, 98 S.E.2d 210, the holding by this court, in Broyles case, supra, as to the proper construction of the contract controls in the present case inasmuch as the contract is the identical contract sued on in that case. Such contract is necessarily on 'all fours' with the contract in the present case.

The material allegations of the petition were...