H. A. Koch Co. v. Adair
| Decision Date | 20 September 1934 |
| Docket Number | 23808. |
| Citation | 176 S.E. 680,49 Ga.App. 824 |
| Parties | H. A. KOCH CO. v. ADAIR et al. |
| Court | Georgia Court of Appeals |
Rehearing Denied Sept. 29, 1934.
Syllabus by Editorial Staff.
Where suit was dismissed as to defendants who demurred to petition remaining defendants were not "necessary parties" to bill of exceptions brought by plaintiff to review judgment dismissing petition as to demurring defendants.
Purchaser of corporation's bonds could not recover against stockholders or directors for misrepresentations, without showing that stockholders or directors actively participated in misrepresentations, for purpose of inducing purchaser to buy bonds, with actual knowledge of falsity of representations, or recklessly, without any knowledge thereof, but with intent to deceive, although such stockholders and directors controlled affairs of corporation and plaintiff relied on their false representations.
Allegation that defendants knew and/or should have known that certain representations were false charged implied, rather than actual, notice, since pleadings must be construed most strongly against pleader.
Petition cannot be dismissed on general demurrer because setting forth wrong measure of damages, such defect being subject only to special demurrer.
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.
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 the 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 nor served with a copy thereof. The cause still remained in the court below as to the three defendants 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 dismissed 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...
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