Broyles v. Johnson
| Decision Date | 02 October 1959 |
| Docket Number | 2,No. 37689,Nos. 1,37689,s. 1 |
| Citation | 100 Ga.App. 511,111 S.E.2d 766 |
| Parties | Jack BROYLES, Assignee, v. Herbert JOHNSON |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The petition stated a cause of action, and the trial court erred in sustaining the general demurrer thereto.
This is the fourth appearance in this court of cases involving a consideration of a contract entered into between H. G. Walton, as party of the first part, and Herbert Johnson, as party of the second part. The first of these cases was Broyles v. Kirkwood Court Apartments, Inc., 97 Ga.App. 384, 103 S.E.2d 97. The next appearance was Broyles v. Johnson, 99 Ga.App. 69, 107 S.E.2d 851, wherein the body of the contract here in question was quoted in full. At the same term of this court at which the latter case appeared this court had for its consideration a suit for money had and received brought by the plaintiff here against the defendant here, and in which this court reversed the judgment of the trial court overruling the defendant's general demurrer to the petition. See Johnson v. Broyles, 99 Ga.App. 76, 107 S.E.2d 853. In the first mentioned case, this court held that the contract here in question was not a contract or undertaking of Kirkwood Court Apartments, Inc., but that it purported to be a contract or undertaking on the part of Johnson individually, if anything, and this court accordingly affirmed the trial court in sustaining the general demurrers and in dismissing the action against Kirkwood Court Apartments, Inc. In the second case, the action was for a breach of Item 3 of the contract, and it was there held that, since that item related to the disposition of corporate profits and since the petition failed to allege that any dividends had been declared by the corporation, there were no profits to be divided between the individuals, and accordingly no breach of Item 3 of the contract had occurred under the allegations of the petition. The instant suit is an action to recover amounts allegedly due the plaintiff's assignor under the provisions of Item 2 of the contract. The trial court sustained a general demurrer to the petition as finally amended and the exception here is to that judgment.
Insofar as is material to a consideration of the question before this court, the petition in this case alleged that Walton, the plaintiff's assignor, and the defendant were each owners of a half interest in the corporation known as Kirkwood Court Apartments, Inc.; that Walton was president, and the defendant was secretary-treasurer and general manager thereof; that the corporation was organized for the sole purpose of building, owning, operating and perhaps selling the 32-unit apartment building constructed on the land owned by the corporation, and that pursuant to said purpose the corporation entered into a contract with an architect and subsequently erected pursuant to plans drawn by said architect a 32-unit apartment house; that at the time the apartment house was completed and the loan was made thereon the proceeds of the permanent loan were insufficient to pay certain indebtednesses incurred by the corporation in the construction of the apartments, and that the plaintiff advanced certain sums for the benefit of the corporation to pay these indebtednesses, and that under the contract sued on the first sums to be collected from the rentals of the apartments were to be applied in repayment of the advances made by Walton and by the defendant; that the defendant subsequently took over complete control of the corporation, having sued Walton on an indebtedness due him by Walton, and having, after recovering a judgment on that indebtedness, and having levied on Walton's stock and thereby taken over complete control of the corporation, proceeded to apply the corporate funds to his own purposes, including the repayment to him of an indebtedness due him by the corporation, and subsequently having sold the corporation and the corporate property to third parties unknown to the plaintiff, failed as corporate officer to repay to the plaintiff's assignor the sums advanced by the said assignor, and by reason of these facts, it is contended that the defendant is personally liable for these sums, including accrued interest in the amount of $4,272.30.
Elijah A. Brown, Jr., Atlanta, for plaintiff in error.
Johnson, Hatcher, Meyerson & Irvin, Henry M....
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