Hamil v. Flowers

• Decision Date: 16 July 1909
• Parties: HAMIL v. FLOWERS et al.
• Court: Georgia Supreme Court

65 S.E. 961

133 Ga. 216

HAMIL v. FLOWERS et al.

Supreme Court of Georgia

July 16, 1909

Rehearing Denied Aug. 14, 1909.

Syllabus by the Court.

An equitable petition was filed in a county in this state, where a corporation was chartered and had its principal office alleging that by agreement with a stockholder and promoter the intestate of the plaintiff was to have a certain number of shares of stock of the corporation when they should be paid for in the manner provided for in the contract, and that this had been done, and that the plaintiff's intestate became the real owner, but the executors of the other contracting party refused to transfer or have transferred such stock. Held, that the shares of stock were personal property, and their situs was the domicile of the domestic corporation, for the purpose of giving jurisdiction to an equitable proceeding for any of the purposes indicated in Civ. Code 1895, § 4976.

(a) The substantial purpose of the bill being as indicated in the preceding headnote, although a prayer for specific performance and for a decree for dividends was not sustainable, appropriate relief could be granted under the prayer for general relief.

(b) The person who was alleged to have contracted with the intestate of the plaintiff having died a resident of another state, and letters testamentary having been there granted to several executors, and one of them having become a resident of this state, and of the county where the suit was filed, and having been served personally, the others could be served by publication under Civ. Code 1895, § 4976.

Error from Superior Court, Early County; W. C. Worrill, Judge.

Equitable petition by H. F. Hamil, administrator of J. M. Bivings deceased, against W. H. Flowers and others, executors of J J. Flowers, deceased. Judgment for defendants, and plaintiff brings error. Reversed.

An equitable petition alleged that by agreement with a stockholder and promoter of a domestic corporation plaintiff's intestate was to have certain shares of stock, when paid for in the manner provided, that this had been done, and plaintiff's intestate became the real owner, but the executors of the other contracting party had refused to transfer, or have transferred, such stock. Held that the shares of stock were personal property, and for the purpose of a suit to quiet title their situs was the domicile of the corporation.

H. F. Hamil, as administrator of J. M. Bivings, deceased, filed his equitable petition in the superior court of Early county against W. H. Flowers, alleged to be a resident of Early county in this state, Elizabeth Flowers, E. P. Flowers, Brooks Flowers, and John J. Flowers, Jr., of the state of Alabama, all as executors of J. J. Flowers, deceased, who had died in the state of Alabama, and whose will had been there probated. The plaintiff alleged, among other things, the following: In 1898, during the lifetime of the defendants' testator and the plaintiff's intestate, they entered into a contract by which the former was to convey to the latter a one-sixteenth interest in a corporation of Early county, Ga., known as the "Flowers Lumber Company." Prior to entering into the contract, the plaintiff's intestate and two other persons had been engaged in the manufacture of lumber in Early county under the name of the "Bivings Bros. Lumber Company," which was incorporated under the laws of Georgia. That corporation became financially embarrassed, and, owing to its want of means, could not be kept going. For that reason it was sold to the Flowers Lumber Company, or to the individuals who subsequently organized and became the owners of all of the stock of such company; the assets transferred including certain land. After the Flowers Lumber Company was organized, the plaintiff's intestate entered into a contract with John J. Flowers, by which the latter, in consideration of the former interest of said intestate in the property acquired by the Flowers Lumber Company of the Bivings Bros. Lumber Company, and in further consideration of services that he had rendered to the individual parties composing the Flowers Lumber Company in aiding them to acquire the property of the other company, and in consideration of further services to be rendered by him in the future to the Flowers Lumber Company, agreed and contracted with him that John J. Flowers would give him a one-sixteenth interest in all the assets, property, and business of the Flowers Lumber Company, and with the further understanding that the stock certificate representing such one-sixteenth interest was to be held by Flowers as trustee or agent for plaintiff's intestate, until the profits or dividends declared or earned by the Flowers Lumber Company should pay therefor; the last-mentioned corporation being capitalized at $80,000.

During his lifetime the plaintiff's intestate fully complied with the contract on his part, and it had become executed before his death. Flowers contracted and agreed with the plaintiff's intestate to hold the stock certificates representing said one-sixth interest in the Flowers Lumber Company in his name until they had been fully paid for as above stated. Flowers was one of the original incorporators of the Flowers Lumber Company, and agreed with the plaintiff's intestate to transfer to the latter a sufficiency of the stock so owned by Flowers to give plaintiff's intestate a one-sixteenth interest in the capital stock of the corporation; the contract being that Flowers was to transfer so much of the stock held and owned by him to the plaintiff's intestate as would represent a one-sixteenth interest of the entire capital stock of the corporation. The stock so contracted to be transferred was to be held by Flowers and to appear on the books of the corporation as his stock, and was not to be transferred to the plaintiff's intestate until a sufficient amount of the money had been earned by the business to pay for it at its par value on the basis of the original...