Graham v. Raines, 33301
| Decision Date | 02 March 1951 |
| Docket Number | No. 33301,No. 1,33301,1 |
| Citation | 83 Ga.App. 581,64 S.E.2d 98 |
| Parties | GRAHAM et al. v. RAINES |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The petition in this trover case drawn substantially in the 'Jack Jones Form' was sufficient to withstand a general demurrer. (a) The description of the property sought to be recovered, as 87,319 pounds of peanuts grown on a particular farm in 1945 and delivered to the defendants by certain persons or firms during a specified period of time was sufficient to withstand the special demurrer raising that question.
2. After the dissolution of a partnership, and a division between the two partners of the firm assets remaining after the payment of all indebtedness, and after an agreement between the partners that a claim for personalty against a third party, a part of the firm assets, would be divided equally between them, the partners thereafter became tenants in common, insofar as such personalty, or their claim therefor was concerned, and it was permissible for an assignee of the interest in such personalty and of his claim therefor of one of such cotenants to sue in trover for the recovery of a one-half undivided share of such property without joining the other cotenant, and without suing in the name of the dissolved partnership.
3. In an action ex-delicto it is permissible for the plaintiff to join as defendants in one suit the principal and the agent, by whom the tort was actually committed, as joint tort-feasors.
J. G. Raines sued Frank A. Graham and the Southern Cotton Oil Company in an action in trover in the Superior Court of Terrell County. His petition as amended alleged substantially that he was the owner by a written assignment, a copy of which was attached as an exhibit to the petition, of a one-half interest in 174,639 pounds of peanuts delivered to the defendants, Southern Cotton Oil Company by J. W. Duskin or the Farmers Exchange, neither of whom had title to the said peanuts, and received by the defendant Graham as the agent of the Company during the latter part of October and the months of November and December, 1945; that he claims title and the right of possession, and that the defendants, after demand, have refused to deliver them to him; that the value of the peanuts is $19,140; that the peanuts in question were raised on a farm jointly operated by Mrs. Gussie Raines, plaintiff's assignor and Mrs. J. W. Duskin; that the joint enterprise referred to was dissolved by oral agreement on or about the first of November, 1947, and all debts were paid; that the property owned by the joint enterprise was divided and distributed between the parties each to own a one-half interest; that the said Mrs. Raines and Mrs. Duskin each owned a one-half interest in the peanuts in question which were delivered to the defendants during the latter part of October and the months of November and December in the year 1945; that the amount of peanuts so delivered was 174,639 pounds, one-half, or 87,319 pounds of which now belong to the plaintiff.
The defendants demurred to the petition as amended on the ground that it set forth no cause of action; that no sufficient facts were set forth to show a right in the plaintiff to recover an undivided half interest in partnership property or to recover of the defendants the value of such undivided property; that the property sought to be recovered was not sufficiently described; that it was not specified when or under what conditions, or how the peanuts were delivered to the defendants, or in what quantities, or what kind, or from whom J. W. Duskin or the Farmers Exchange received the peanuts; that there was a nonjoinder of parties plaintiff in that this is a suit to recover an undivided half interest in partnership property, and neither the partnership nor the members of the partnership are made parties plaintiff; that there is a misjoinder of parties defendant in that it does not appear that there is a joint cause of action against the defendants; that it does not appear what property was divided in the dissolution of the partnership; how it was divided and distributed, whether such division referred to included the peanuts, and how and in what manner such dissolution would be binding on the defendants in this case. The defendants further demurred to the petition as amended on the ground that the petition as originally drawn sought to recover partnership property, while the amendments sought to recover the same property as a joint tenant; and further on the ground that the petition as amended was duplicitous in that it sought recovery in one count on two distinct and inconsistent causes of action, that as originally drawn the case was an action in trover while the amendments sought to recover the value of the property and damages for the conversion of the property.
The trial court overruled the demurrers, both general and special and the exception here is to that ruling.
Smith, Kilpatrick, Cody, Rogers & McClatchey, Atlanta, R. R. Jones, Dawson, for plaintiff in error.
H. A. Wilkinson, Dawson, Leonard Farkas & Walter H. Burt, J. V. Davis and E. A. Landau, Jr., all of Albany, for defendants in error.
The original petition in this case was substantially in the 'Jack Jones' form...
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