Capps v. Edwards
| Decision Date | 22 February 1908 |
| Citation | 60 S.E. 455,130 Ga. 146 |
| Parties | CAPPS . v. EDWARDS. |
| Court | Georgia Supreme Court |
The petition set out a cause of action as against a general demurrer, and the court did not err in refusing to dismiss the same on oral motion made at the trial term.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 17, Dismissal and Nonsuit, § 163.]
The petition, considered in its entirety, is a suit by the vendor of stock in an incorporated company against the vendee, evidence by a written executory contract of sale, for recovery of the value of the stock contracted to be sold.
Parol negotiations eventuating in an unambiguous written contract are merged in the writing, and are ineffectual to vary or contradict the writing.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 2030-2047.]
Fraud, to be the basis of rescission or reformation of a contract, must be fraud in the execution thereof; and, when it is attempted to annex to the writing a parol conditional stipulation, it must appear that such stipulation was omitted from the writing at the time of execution through fraud, accident, or mistake.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 42, Reformation of Instruments, § 80.]
(Syllabus by the Court.)
Error and Cross-Error from Superior Court, Stephens County; J. J. Kimsey, Judge.
Action by W. C. Edwards against T. A. Capps. Judgment for plaintiff, and defendant brings error, and plaintiff assigns cross-error. Affirmed.
J. B. Jones, R. A. Naves, J. W. Owen, and H. H. Perry, for plaintiff.
H. H. Dean, for defendant
ATKINSON, 3. 1. An oral motion to dismiss the plaintiff's case, because no cause of action is set out in the petition, may be made at any stage before verdict. Kelly v. Strouse & Bros., 116 Ga. 872, 43 S. E. 280 (1). If a defendant neglects at the appearance term to point out any particular defect by way of written demurrer, the whole petition, including the exhibits, will be examined to ascertain whether a cause of action is set forth. The question in an oral motion to dismiss is not whether any particular allegation has been defectively pleaded, but whether the pe-tition in Its entirety fails to set out a cause of action.. It is insisted on the oral motion to dismiss that the consideration for the promise is alleged to be the plaintiff's subscribing $6,500 to the Capps Cotton Mills, and that there is no allegation in the petition that the plaintiff had subscribed to any stock. It is true it is not alleged in totidem verbis that the plaintiff had subscribed to stock in the Capps mills, but it does appear that, acting upon the agreement, he procured the company to issue to him the amount of stock for which he was obligated to subscribe, and for which he paid the company its par value, and that the stock was issued subsequently to and in pursuance of the contract and a certificate issued by the Capps Cotton Mills to the plaintiff. The issuance of the stock necessarily presupposes that there was an application for the same; and it is immaterial, after the issuance of the stock, whether the application was made verbally or by a written stock subscription, as the whole purpose of the subscribing to the stock Is to render the subscriber liable to the corporation and bound to take the stock. When the stock has been issued and paid for, the question of stock subscription becomes immaterial.
2. Although the petition prays for the specific performance of the executory contract of sale, and alternatively, that, if this relief cannot be afforded, he recover damages, yet it is clear from the allegations of the petition and from Its...
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S. & S. Builders, Inc. v. Equitable Inv. Corp., 22145
...v. Newton, 59 Ga. 113(5); Weaver v. Stoner, 114 Ga. 165, 167, 39 S.E. 874; Arnold v. Malsby, 120 Ga. 586(1), 48 S.E. 132; Capps v. Edwards, 130 Ga. 146(3), 60 S.E. 455. We refer to the written contract in this case as 'valid, complete, and unambiguous' for it is quite clear that should it f......
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Purcell v. Armour Packing Co.
... ... Wellmaker v. Wheatley, ... 123 Ga. 201, 51 S.E. 436; Pitts v. Allen, supra; Atkinson ... v. Lanier, 69 Ga. 460 (2); Capps v. Edwards, ... 130 Ga. 146, 60 S.E. 455. That is to say, if an unconditional ... written promise is founded upon a consideration, parol ... ...
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Purcell v. Armour Packing Co
...be received. Wellmaker v. Wheatley, 123 Ga. 201, 51 S. E. 436; Pitts v. Allen, supra; Atkinson v. Lanier, 69 Ga. 460 (2); Capps v. Edwards, 130 Ga. ——, 60 S. E. 455. That is to say, if an unconditional written promise is founded upon a consideration, parol evidence is inadmissible to ingraf......
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Wallace v. Wallace, A18A0778
...2003, when Wallace Electric exercised its obligation to repurchase the stock, and Doss refused to sell.7 See, e.g., Capps v. Edwards , 130 Ga. 146 (2), 60 S.E. 455 (1908) (in executory contract for sale of stocks, once tender is alleged, refusal to adhere to contractual obligation allows su......