H. A. Koch Co v. Adair

• Decision Date: 20 September 1934
• Docket Number: No. 23808.,23808.
• Citation: 49 Ga.App. 824,176 S.E. 680
• Parties: H. A. KOCH CO. v. ADAIR et al.
• Court: Georgia Court of Appeals

49 Ga.App. 824

176 S.E. 680

H. A. KOCH CO.

v.ADAIR et al.

No. 23808.

Court of Appeals of Georgia,

Division No. 2.

Sept. 20, 1934.

Rehearing Denied Sept. 29, 1934.

Syllabus by Editorial Staff.

STEPHENS, J., dissenting.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Suit by the H. A. Koch Company against Forrest Adair, Sr., and others. To review a judgment dismissing the petition as to some of defendants, plaintiff brings error.

Affirmed.

Winfield P. Jones, of Atlanta, for plaintiff in error.

Marion Smith, Jones, Evins, Powers & Jones, John M. Slaton, Colquitt, Parker, Troutman & Arkwright, Howell, Heyman & Bolding, and Branch & Howard, all of Atlanta, for defendants in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

1. Where an action was brought against thirteen defendants, charging them with having damaged the plaintiff by their joint acts of fraud and deceit, and ten of the defendants demurred to the petition and the action was dismissed as to them, the remaining defendants were not necessary defendants in error to the bill of exceptions filed by the plaintiff to review tho judgment dismissing the petition as to the ten demurring defendants, and the bill of exceptions is not subject to dismissal in this court upon the ground that these three defendants were not made parties to the bill of exceptions not served with a copy thereof. The cause still remained in the court below as to the three defendant who did not demur to the petition. See Smith v. Atlanta Enterprises, 46 Ga. App. 760, 169 S. E. 243; McGaughey v. Latham, 63 Ga. 67; Jones v. Hurst, 91 Ga. 338, 17 S. E. 635; Hibble v. Mutual Oil Co., 170 Ga. 694, 153 S. E. 771; Huey v. National Bank, 177 Ga. 64, 169 S. E. 491. This case is clearly distinguishable from Malsby v. Shipp, 177 Ga. 54, 169 S. E. 308, Poston v. Durham & Co., 177 Ga. 870, 171 S. E. 765, and cases on which these decisions are based. In those cases the judgment of the court below dismissed the petition as to all the defendants. The same is true of the cases of Tillman v. Davis, 147 Ga. 206, 93 S. E. 201, and Sistrunk v. Davis, 31 Ga. App. 397, 120 S. E. 675. In the latter two cases, not all of the defendants demurred to the petition, however the case was dis-missed on general demurrer as to all the defendants, and the court held that such dismissal inured to the benefit of all the defendants, and that they were necessary defendants in error to a bill of exceptions seeking to review that judgment

The motion to dismiss the bill of exception is therefore denied.

2. Stockholders or directors in a corporation are not liable in damages for losses sustained by one in dealing with the corporation by reason of false representations as to the solvency and financial condition of the corporation and of the worth of certain bonds sold by it to the plaintiff, where it is not shown that such stockholders or directors actively participated in the misrepresentations charged, and unless it is also shown that such misrepresentations were made for the purpose of inducing the plaintiff to purchase such bonds with actual knowledge of the falsity of the representations or recklessly, without any knowledge thereof, but with an intent to deceive. This is true even though the petition of the plaintiff allege that the affairs of the corporation are controlled and dominated by such stockholders and directors, who owned the majority of the stock therein; and that the plaintiff believed and relied upon the alleged false statements and representations of the...