Coral Gables Corp. v. Hamilton, (Nos. 6620, 6645.)

CourtSupreme Court of Georgia
Writing for the CourtRUSSELL
Citation168 Ga. 182,147 S.E. 494
Docket Number(Nos. 6620, 6645.)
Decision Date23 February 1929
168 Ga. 182

147 S.E. 494


(Nos. 6620, 6645.)

Supreme Court of Georgia.

Feb. 23, 1929.

(Syllabus by the Court.)
[147 S.E. 495]

Atkinson, J., dissenting in part.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Proceedings by Jennie Hamilton and another against the Coral Gables Corporation and others. Judgment for plaintiffs, defendant named brings error, and plaintiffs file cross-bill of exceptions. Affirmed on each bill of exception.

The plaintiffs, Jennie Hamilton and Elizabeth Hamilton, of Dalton, Ga., contracted to purchase from the defendant, Coral Gables Corporation, two lots in what is called the Biscayne Bay subdivision in or near Coral Gables, Fla.; the purchase price of one lot being $27,360 and of the other $7,600. One half of the purchase price was paid in cash; the other half was represented by certain monthly notes. The contract, called an agreement to make deed, is referred to hereinafter. The Coral Gables Corporation is a corporation of the state of Florida. A statutory attachment had been sworn out by the plaintiffs before the filing of the present suit, but this attachment does not appear in the record. Presumably it was based upon the nonresidence of the Coral Gables Corporation. Upon this attachment, process of garnishment was issued, and summonses of garnishment were served upon various natural persons and corporations in this state, alleged to be debtors of the Florida corporation or quasi trustees in possession of funds belonging to that corporation. The present petition names as defendants the Coral Gables Corporation, the Atlanta Trust Company, Wynne Investment Company, and G. Lloyd Preacher & Co., corporations, and Mrs. Helen R. Turman, James W. Young, Mattellne Young, Mrs. Julia A. Tatum, Hyman Herman, Benjamin Feld, Thomas B. Ritchie, Sr., and Mrs. W. H. Irvine, of Fulton county, Ga. It is alleged as follows: The petitioners entered into a writing on February 19, 1926, with the Coral Gables Corporation, in which the corporation agreed to sell them certain described lots, the one designated as lots 1 and 2 of block 70 of Biscayne Bay section, part 1, of Coral Gables, and the other as lot 12 of block 92 of Biscayne Bay section, part 1, of Coral Gables, "according to a plat of said section prepared by H. J. Jones, C. E., and bound to be recorded." In each of these contracts the balance of the purchase price was to be paid in thirty-six consecutive monthly installments. The payments

[147 S.E. 496]

upon the lots in block 70 were $380 each, and upon the lot in block 92 were $100.93, except that the last payment was to be $101.20. The first payment on each lot became due March 19, 1926. The deferred payments were evidenced by promissory notes executed by the plaintiffs. Some of the notes had been paid before the bringing of the suit. These notes were delivered to the Coral Gables Corporation contemporaneously with the delivery of the "contract for deed"; the latter being signed by the plaintiffs as well as by the officers of the corporation.

In the third paragraph of the petition it is alleged that the "Coral Gables Corporation, through its duly constituted officers and agents who induced petitioners to enter into this contract, " made representations that there was about to be built on said Biscayne Bay section, part one, of Coral Gables, large and beautiful lakes, one to be called "Lago Eunice, " another to be called "Lago Minore, " another to be called "Lago Avenazno, " and another to be called "Lago Massiore, " which would be three or four hundred feet in width and form a waterway from the main Coral Gables waterway as it entered the bay, offering within this section alone another 25 miles of water frontage property; that the material dredged from these lagoons would be used to fill land around their banks, the filling of this land being important for making this property available; that there would be three important entrances to this section, one at Cocoplum Plaza, one at the southern boundary near Chapman Meld, and an imposing entrance on the West Dixie highway about midway between the northern and southern boundaries of the section; that a number of plazas would be developed, and in Garibaldi Plaza there would be placed a statute of the famous Garibaldi, executed by a world-famed sculptor; that many beautiful parks would be provided; that contracts had already been let for filling parts of the Biscayne Bay section, and that dredges of large capacity would soon be seen converting all of the low areas which were not to be left as permanent waterways into firm dry land; that all of the utilities of Coral Gables, including electric current, water, and garbage disposal, were to be made available to the Biscayne Bay section as soon as they were reasonably required for building operations; and that a quarter billion dollar building program was the objective in new Biscayne Bay section. This latter fact was stated as coming from George E. Merrick, who was represented as the president and moving force of Coral Gables Corporation. It was represented that in the older parts of Coral Gables nearly $75,000, 000 had been expended prior to December 10, 1925, on more than 1, 000 buildings and other phases of development.

It is further alleged in this paragraph, among other things, that it was represented to petitioners that 221 separate contractors had undertaken the construction of 2, 122 ad ditional homes, 78 hotels and apartments, and 25 commercial buildings, of the total value of $207,800, 000, which did not include the vast amount of work being done by the Coral Gables Corporation. A map was exhibited, showing the development of the South Sea Isles on Biscayne Bay front, and the South Sea Waterway, as well as a general plan for the development of the Biscayne Bay section, part one, including the East Dixie highway, Ridge road, Ponce De Leon boulevard, etc. It was represented that a wide paved road, to be called Biera Mar, would be built along the outer edge of the above-mentioned islands; that this driveway would be "the most appealing and picturesque drive in America, " being modeled after that splendid drive of the same name along the sea in Rio de Janeiro; that there would be, ready for opening in January, 1927, a Casino planned by the Miami Biltmore Hotel Corporation, which would rival those noted casinos along the Mediterranean Riviera; that a yacht club would be erected by the Biltmore Corporation, and that it was expected to be ready for use in 1927. These representations are alleged to have been made by the defendant to induce the purchase of the lots. It was set out in each of the contracts for deeds and agreed by the Coral Gables Corporation that it would cause to be provided suitable and convenient water supply and electric current at reasonable rates, upon the beginning of the construction of a house on the above-described property in accordance with the provisions of this agreement, and after 60 days' written notice, and that streets would be paved, sidewalks constructed, and water mains and electric feed lines installed, without cost to the purchaser. The representative of the Coral Gables Corporation, one Bush, stated that he had bought and paid in cash for two lots in the block next above or in the opposite block; that the Coral Gables Corporation had decided to raise the price of the lots in said section 10 per cent., which increase was likely to go into effect any day; and that three-fourths of the lots in that section of Coral Gables had then been sold. The defendant represented that each of the lots was on February 19, 1926, in its opinion, of a value in excess of the purchase price thereof; and that title companies of good standing in Miami would issue policies of insurance on each of said lots, guaranteeing the title.

In paragraph 4 of the petition, it is alleged that Coral Gables Corporation had no such opinion as to the value of said property as that just referred to; that it knew at that time that the lots had no such value; that the title to the land was not and is not unincumbered, but the property was and is subject to a blanket mortgage, the amount of which is unknown to petitioners; that each and every statement of the Coral Gables Corporation as to all existing facts was erroneous and material; that the representations were made for the purpose of inducing petitioners to pur-

[147 S.E. 497]

chase the property, and the fact that they were erroneous was unknown to petitioners, and they influenced petitioners to purchase the property and make the payments heretofore referred to; that the statements as to future facts or future occurrences were made by the corporation with the knowledge that those future occurrences would not and could not be fulfilled, and without intent on the part of said corporation to fulfill them, but this was not known to petitioners, who had no means of knowing that they would not be fulfilled and that there was no intention to fulfill them. In paragraph 7 it is alleged: At the time of making the statements, the corporation was wholly unable to perform any substantial part of the aforesaid undertakings. It knew it was unable to perform them, and made the statements with knowledge of its incapacity to perform. It had no intent of performing the alleged future undertakings. The petitioners lived in Dalton, Ga., more than 800 miles from the situs of the lots. They did not know that the corporation was unable to perform its future undertakings, or that the value of the lots was very much less than that represented as their value in the opinion of said corporation, nor know that the corporation had no such opinion, nor did they know that the lots were incumbered; they accepted the representations made as being correct. After making the contract, they returned to their home, and did not go to Coral Gables until November, 1926. In the meantime...

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25 practice notes
  • Grimmett v. Barnwell, No. 11666.
    • United States
    • Supreme Court of Georgia
    • June 17, 1937
    ...performance of a contract for the sale of land In this state, a recognized equitable ground. In Coral Gables Corporation v. Hamilton, 168 Ga. 182, 147 S.E. 494, one justice dissenting and another concurring only in the result, not only does it appear that an attachment at law had already be......
  • Livingston v. Barnett, No. 13977.
    • United States
    • Supreme Court of Georgia
    • February 13, 1942
    ...was not objectionable for any reason stated. Kelly v. Strouse & Bros., 116 Ga. 872 (2), 43 S.E. 280; Coral Gables Corporation v. Hamilton, 168 Ga. 182 (8), 147 S.E. 494; Cook County v. Thornhill Wagon Co., 189 Ga. 360 (2), 5 S.E.2d 881; Floyd v. Morgan, 62 Ga.App. 711, 715 (5), 9 S.E.2d 717......
  • Clinton v. State Farm Mut. Auto. Ins. Co., No. 40802
    • United States
    • United States Court of Appeals (Georgia)
    • September 25, 1964
    ...this one. Until that is done we can do no other than follow the rule now standing. We are not unaware of Coral Gables Corp. v. Hamilton, 168 Ga. 182, at p. 194, 147 S.E. 494, 500, where it was asserted: '[T]here can be no question that a promise to do a certain thing of value to the promise......
  • King Sales Co. v. McKey, No. 38797
    • United States
    • United States Court of Appeals (Georgia)
    • June 28, 1961
    ...thus fraudulently made will authorize rescission of a written instrument purporting to be a contract.' Coral Gables Corp. v. Hamilton, 168 Ga. 182(8), 147 S.E. 2. The plaintiff's petition does not set forth a cause of action upon the basis of false statements concerning the deleterious effe......
  • Request a trial to view additional results
6 cases
  • Ely v. Stratoflex, Inc., 49459
    • United States
    • United States Court of Appeals (Georgia)
    • September 6, 1974
    ...made with a present intention not to perform. Hayes v. Hallmark Apartments, 232 Ga. 307(1), 207 S.E.2d 197; Coral Gables v. Hamilton, 168 Ga. 182, 147 S.E. 494; Hill v. Stewart, 93 Ga.App. 792, 92 S.E.2d 829; Floyd v. Morgan, Page 585 62 Ga.App. 711, 9 S.E.2d 717. In these, and other such c......
  • Coral Gables Corporation v. Hamilton, 6620
    • United States
    • Supreme Court of Georgia
    • February 23, 1929
    ...147 S.E. 494 168 Ga. 182 CORAL GABLES CORPORATION v. HAMILTON et al. HAMILTON et al. v. CORAL GABLES CORPORATION. Nos. 6620, 6645.Supreme Court of GeorgiaFebruary 23, Syllabus by the Court. The court did not err in overruling the motion to dismiss the petition, based upon the ground that th......
  • Kennesaw Life & Acc. Ins. Co. v. Flanigan, s. 42781-42782
    • United States
    • United States Court of Appeals (Georgia)
    • May 19, 1967 Bankers Fidelity Life Insurance Company v. Morgan, 104 Ga.App. 894, 897, 123 S.E.2d 433, and Coral Gables Corporation v. Hamilton, 168 Ga. 182(8), 147 S.E. 494, and similar cases. In the Bankers Fidelity case counsel conceded that former Code § 56-519, which imposed a statutory liability......
  • McClure v. Thomas Cook, Inc., 61534
    • United States
    • United States Court of Appeals (Georgia)
    • May 5, 1981
    ...105 Ga.App. 295(1), 124 S.E.2d 436; Williams v. Southland Corp., 143 Ga.App. 111(1), 237 S.E.2d 639; Coral Gables Corp. v. Hamilton, 168 Ga. 182(8), 147 S.E. 494; McCravy v. McCravy, 244 Ga. 336(2), 260 S.E.2d 52. Plaintiff Page 878 alleged that defendant knew or should have known of the fa......
  • Request a trial to view additional results

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