Floyd v. Morgan

• Decision Date: 25 April 1940
• Docket Number: 28298,28314.
• Citation: Floyd v. Morgan, 62 Ga.App. 711, 9 S.E.2d 717 (Ga. App. 1940)
• Parties: FLOYD v. MORGAN et al. MORGAN et al. v. FLOYD.
• Court: Georgia Court of Appeals

9 S.E.2d 717

62 Ga.App. 711

FLOYD v. MORGAN et al.

MORGAN et al. v. FLOYD.

Nos. 28298, 28314.

Court of Appeals of Georgia, Division No. 2.

April 25, 1940

Rehearing Denied June 17, 1940.

Syllabus by the Court.

A mistaken remedy is not a bar to an appropriate remedy.

A. J Floyd sued H. D. Morgan and H. D. Morgan, Jr., for damages for alleged, fraud. The substantial allegations of the petition are as follows: That the defendants have injured and damaged the plaintiff in the sum of $7,000; that on or about July 13, 1937, plaintiff executed and delivered an option to H. D. Morgan which provided in substance that for and in consideration of $300 paid the plaintiff would sell and transfer to Morgan, upon Morgan's payment to him on or before July 13, 1931, the sum of $6,500, and assume payment due on a Dodge truck of approximately $500, all his contracts, rights, and leases with the Sinclair Refining Company, that of warehouses and filling stations in Floyd County and to execute such transfers and assignments of such leases, contracts and rights as he may have, including agency contracts, consignment contracts and all other contracts and to convey two Dodge trucks, being all the trucks owned by the plaintiff then being used in the delivery of gasoline and petroleum products in Floyd County; that prior to July 13 1937, plaintiff had been the agent for the Sinclair Refining Company in Floyd County and certain surrounding territories for six years and had built up a demand for the products of said company in this territory; that prior to that time the defendant Morgan had sought to buy a one-half interest in said business and that a price of $2,500 had been agreed upon, but that thereafter the written agreement had been rescinded by mutual agreement; that thereafter petitioner had numerous conversations with Morgan relative to the purchase of the agency, Morgan stating that he wanted it for his son who was finishing school; that thereafter and prior to July 26, 1937, Morgan notified the petitioner that he desired to exercise the option and buy the business; that Morgan and petitioner went to the bank and Morgan stated in the presence of an officer of the bank that he was buying the business and

would need certain money to exercise the option, and was told by this official that the bank would let him have the money that acting upon the statement of Morgan, petitioner notified the Sinclair Refining Company that he was selling the business and desired to terminate his connection with the company and requested that he be checked out as such agent, and in accordance with this request the company did send an auditor to make an inventory and check the books for the purpose of relieving petitioner as agent; that while said auditor was checking the books Morgan repeated his statement that he would exercise the option and told the auditor that he would exercise it; that acting upon this statement he turned over to the auditor all the property and keys of the agency, and that Morgan was present and actually helped check the amount of gasoline and oil on hand at the time; that during the taking of the inventory Morgan was present and would pat his pockets and say that he was ready to exercise the option, implying that he had the money with which to do it; that after petitioner had turned over the keys Morgan took him to an automobile to straighten out the details, and while there Morgan stated that he would not pay petitioner; that petitioner was out of the business and that he, Morgan, was in, and that it was not worth what he had agreed to pay; that this was the first notice petitioner had that Morgan did not intend to comply with the agreement, and that it was then too late to withdraw his resignation as agent of the company; that immediately following this and on the same day H. D. Morgan, Jr., was named agent for the company at Rome, and went into the place of business of petitioner and that all of the acts done were for the purpose of defrauding petitioner and causing him to resign for the purpose of having one of the Morgans named agent at said place; that the younger Morgan was just 21, without business experience, and that all of the money incident to the transaction was furnished by Morgan, Sr.; that all of the acts done were a part of a conspiracy between the defendants to obtain the agency for nothing and that it was obtained for nothing; that all of the statements and acts by Morgan were for the purpose of deceiving and defrauding petitioner into believing that Morgan in good faith intended to exercise the option and to pay according to its terms, and that petitioner was deceived by the statements and acts or he would not have resigned as agent but would have continued to act; that petitioner had no conversation with the younger Morgan but that the younger Morgan accepted the benefits and acts of his father and ratified them and was responsible therefor; that as soon as Morgan, Jr., was named as agent the father denied all liability under the option and refused to pay petitioner; that petitioner had been the agent for six years and had built up a demand for the products of the refining company, and that the reasonable value of his business was $7,000, and that he has been damaged in that amount.

H. D Morgan, Sr., demurred to the petition generally and specially, on the grounds (1) that the petition set out no measure of damages; (2) that all the allegations of conspiracy were conclusions of the pleader; (3) all the other special demurrers are covered and merged in the questions raised by the general demurrer and the special demurrers named above. H. D. Morgan, Jr., demurred generally and specially on the ground that no conspiracy was alleged. H. D. Morgan filed his answer denying the allegations of the petition and further alleging in substance that he paid the plaintiff $300 for the option on the property but upon investigation found that the plaintiff was unable to deliver the property and that the company would not approve the transfer of the lease and franchise;...