Hennessy v. Woodruff
| Decision Date | 13 July 1954 |
| Docket Number | No. 18600,18600 |
| Citation | 210 Ga. 742,82 S.E.2d 859 |
| Parties | HENNESSY v. WOODRUFF et al. |
| Court | Georgia Supreme Court |
John G. Cozart, Columbus, for plaintiff in error.
Powell, Goldstein, Frazer & Murphy, Atlanta, Hatcher, Smith & Stubbs, Dan S. Beeland, Ernest C. Britton, Columbus, for defendants in error.
Syllabus Opinion by the Court.
Ed J. Hennessy filed, in the Superior Court of Muscogee County, Georgia, his equitable petition against J. W. Woodruff, Sr., The First National Bank of Columbus, W. E. McHugh, William S. Baugh, Louise D. Baugh, and Richard Peebles. The First National Bank of Columbus and J. W. Woodruff, Sr., separately demurred generally to the petition, but the only question now before this court for decision is the judgment of the trial court sustaining the general demurrer of J. W. Woodruff, Sr., and dismissing the petition.
The petition is voluminous, and we shall not attempt to set out the various allegations in detail, but it is clearly shown: that on November 18, 1952, Hennessy, an agent and employee of Woodruff, entered into an agreement with Woodruff, who was the owner of two described vacant lots, whereby the lots would be conveyed by warranty deed to Hennessy, who should obtain plans and specifications from Peebles looking toward the construction of a dwelling house on each lot, and upon receipt of Peebles' estimate of construction costs, Hennessy would make application for FHA commitments for the purpose of determining reasonable value and the amount of insurable loan on each dwelling, and in the event commitments were obtained for amounts sufficiently in excess of Peebles' estimate of construction cost to justify construction of the dwellings, Hennessy should enter into a contract or contracts with Peebles for the construction of a dwelling house on each lot; that, since Peebles would require payment in instalments as construction progressed, Woodruff would pay or advance the necessary funds to meet such instalment payments; that Hennessy should endeavor to sell each house and lot, the prospective purchasers being expected to pay the purchase price in cash or a part in cash and the balance to be obtained by loans through the use of FHA insurance commitments, and upon such sales being consummated, the purchase price, less necessary expenses incurred and less five percent commission to Hennessy should be delivered to Woodruff. The record is silent as to whether or not this contract was in writing, but it is clear that the parties have seen fit to enter into later written contracts with one another, and with third parties, which completely change the terms of the original contract.
On November 26, 1952, Woodruff conveyed the two lots to Hennessy by warranty deeds for a purported consideration of $2,000 each, and on the same date it appears that the original contract was changed when Hennessy executed notes and security deeds obligating himself to pay to Woodruff $2,000 each for the lots in question. When construction on the first house was one-third complete, Woodruff, deviating from the terms of the original contract, instructed Hennessy to execute a promissory note in favor of The First National Bank of Columbus for $2,250, the note to be endorsed by Woodruff, for the purpose of obtaining funds to pay Peebles, which instructions were complied with by Hennesy, this being a departure from the original contract on the part of both parties, which was reduced to writing when the note was signed and Hennessy executed a second security deed to the lot on which the first house was being constructed, and delivered it to Woodruff to secure the payment of $2,250 to the bank. On March 26, 1953, Hennessy notified Woodruff that the construction of the first house was then two-thirds completed and that the second house was one-third completed, whereupon Woodruff again instructed Hennessy to execute a promissory note to The First National Bank of Columbus, this time for $4,500, to be endorsed by Woodruff, obtain the funds to pay Peebles, the contractor, all of which was done, and Hennessy then executed and delivered another security deed to Woodruff to the two lots in question to secure payment of this loan by the bank, this being another departure from the original contract, which was reduced to writing. On or about April 1, 1953, Hennessy's employment as a salaried employee of Woodruff terminated. On April 23, 1953, when the first house had been completed, and the second house had passed the second inspection and was two-thirds completed, Hennessy, knowing that Woodruff had withheld the aforementioned security deeds from record, executed a promissory note for $4,500 in favor of Merchants and Mechanics Bank of Columbus, now by merger The First National Bank of Columbus, obtained this sum, and executed to said bank a security deed conveying the lot...
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