Henican v. Perriere

• Decision Date: 30 November 1937
• Docket Number: No. 26186.,26186.
• Citation: 56 Ga.App. 749,194 S.E. 42
• Court: Georgia Court of Appeals
• Parties: HERRMAN & HENICAN. v. DE LA PERRIERE et al.

56 Ga.App. 749

194 S.E. 42

HERRMAN & HENICAN.

v.DE LA PERRIERE et al.

No. 26186.

Court of Appeals of Georgia,

Division No. 1.

Nov. 30, 1937.

Syllabus by the Court.

The court did not err in overruling the motion for new trial.

Error from Superior Court, Barrow County; W. W. Stark, Judge.

Suit by Herrman & Henican against E. E. De La Perriere, surviving executor of the will of George W. De La Perriere, deceased, and another. Judgment for defendants, plaintiff's motion for a new trial was overruled, and plaintiff brings error.

Affirmed.

Winfield P. Jones, of Atlanta, and Chas. L. Henry, of Winder, for plaintiff in error.

G. Fred Kelley, of Gainesville, and Joe Quillian, of Winder, for defendants in error.

BROYLES, Chief Judge.

Herrman & Henican brought suit against George W. De La Perriere (which suit at the time of the trial of the instant case was against E. E. De La Perriere, surviving executor of the will of George W. De La Perriere, and J. N. Rainey, as receiver of the estate of George W. De La Perriere), alleging that George W. De La Perriere contracted with it to buy fifty shares of stock at $50 per share; that on November 22, 1926, it drew a draft (with stock certificate attached) on George W. De La Perriere for $2,500, which draft, through the New Orleans Bank & Trust Company, was forwarded to the Winder National Bank of Winder, Ga.; that the draft and stock were tendered to the defendant and the defendant failed to pay said draft in accordance with the terms of his contract, and the draft and stock certificate were returned to the plaintiff; that the defendant breached the contract of sale, and is liable to the plaintiff in the sum of $2,500. Plaintiff filed and had allowed several amendments dealing with the value of the stock at the time of sale and at the time of the tender, and as to the loss alleged to be sustained. The defendant denied the material allegations of the petition. The jury rendered a verdict for the defendant, and the plaintiff assigns error upon the refusal of the court to grant a new trial.

This is the third appearance of this case in this court. On the first appearance (De La Perriere v. Hermann & Henican, 41 Ga. App. 60, 151 S.E. 813), the defendant De La Perriere obtained a reversal because the court erred in overruling the special ground of demurrer excepting to the failure of the petition to allege the market value of the stock at the time and place for delivery, and because, upon the trial of the case afterward, there was no evidence introduced as to the market value of the stock at the time and place of delivery. On the second appearance here (Hermann & Henican v. De La Perriere, 47 Ga.App. 541, 171 S.E. 232), this court held that "the plaintiff should have been allowed to amend his petition so as to allege that the stock: was worthless on the day it was tendered, the tender being made in accordance with the contract of sale;" and that "the defendant had a rightto plead that the stock was worthless on the day the contract of sale was made, and on the day of tender, and that therefore the sale was without consideration." These decisions fix the law of the case.

While there is no presumption that the face value or the market value of stock is its real value, there was a presumption at the beginning of this case that this stock, at the time of the sale, was worth $2,500, because this was the amount fixed in the contract of sale. This presumption is rebuttable. If it is not rebutted the plaintiff, in order to recover under the pleadings, must go further and prove by competent testimony, and to the satisfaction of the jury, that the stock was tendered to and refused by the defendant, and that at the time of the tender and refusal of the stock its market value was less than the contract price. The plaintiff's loss, if any, would be the difference between the contract price and the market price on the day of the tender. The burden being on the plaintiff to prove these material allegations, its failure to prove them would authorize a verdict for the defendant. The defendant would also be entitled to a verdict in his favor if it appeared from competent evidence...