Malcom v. Webb

• Decision Date: 14 March 1955
• Docket Number: No. 18869,18869
• Citation: 211 Ga. 449,86 S.E.2d 489
• Parties: James T. MALCOM v. Paul WEBB, Solicitor-General, et al.
• Court: Georgia Supreme Court

Page 489

86 S.E.2d 489

211 Ga. 449

James T. MALCOM v. Paul WEBB, Solicitor-General, et al.

No. 18869.

Supreme Court of Georgia.

March 14, 1955.

Syllabus by the Court.

1. It was error to sustain the plaintiffs' demurrer to the defendant's motion to strike the solicitor-general as a party plaintiff, but, under the rulings announced in division 3 of the opinion, this was not such harmful error as will require a reversal.

2. It was not error to sustain the plaintiffs' demurrer to the defendant's plea of estoppel by judgment.

3. The petition stated a cause of action, and the evidence demanded a verdict for the plaintiff.

This is the fourth appearance in this court of litigation involving the purported sale of certain timber by the Commissioners of Roads and Revenues of Fulton County (hereinafter referred to as County Commissioners) to one James T. Malcom. The first appearance involved an application of Malcom for the writ of mandamus to compel the County Commissioners to record on their minutes a contract executed by the Chairman of the County Commissioners on October 4, 1950, purporting to convey the timber involved to Malcom. Malcom v. Aldredge, 208 Ga. 297, 66 S.E.2d 750. Following this decision, the mandamus sought by Malcom was granted in Fulton Superior Court. Prior to the rendition of that decision and judgment, and on October 10, 1950, the County Commissioners filed suit against Malcom to cancel the contract, and to enjoin him from cutting the timber. A verdict in favor of the County Commissioners in that action was reversed by this court in Malcom v. Fulton County, 209 Ga. 392, 73 S.E.2d 173. Following this reversal, that action was voluntarily dismissed by the plaintiffs, and thereafter Paul Webb, in his official capacity as Solicitor-General of the Atlanta Judicial Circuit, and Paul Webb and Carl Copeland as citizens and taxpayers of Fulton County filed the present action, the same being a joint action against Malcom and Fulton County and its Board of Commissioners to cancel the same contract. Rulings of the trial court in connection with certain demurrers filed in this suit were later sought to be reviewed in this court in Malcom v. Webb, 209 Ga. 735, 75 S.E.2d 801, but this court held that the bill of exceptions was premature, and that writ of error was dismissed.

The present action, as amended, alleges substantially that on September 7, 1950, the County Commissioners authorized and empowered the County Land Agent and the County Manager to submit bids received for said timber to the board for final authorization; that the purported conveyance to Malcom was not signed on behalf of Fulton County until October 4, 1950, at which time the Chairman of the County Commissioners signed said purported conveyance on behalf of the county; that the official seal of Fulton County was not placed on the purported conveyance on that date, and was not thereafter placed thereon until February 7, 1951, when the official seal was placed thereon pursuant to resolution of the board; that the purported contract was not delivered to the defendant Malcom on October 4, 1950, but remained continuously, solely, and completely in the possession and custody of the County Commissioners until February 7, 1951, when it was delivered to an agent of Malcom pursuant to a resolution of the County Commissioners; that Malcom was informed on October 4, or October 5, 1950, that said contract was not ready, and that he should not proceed to process the timber; that on September 19, 1950, the Clerk of the County Commissioners received a written offer from one Roy Harrell to purchase said timber for $32,500, payment to be made in full at the time of signing the lease; that, on September 25, 1950, Holloway Lumber and Coal Corporation, by letter addressed to the County Manager, offered to purchase the timber for $35,000, plus 55,000 feet of oak timber, plus the clearing away of all laps and debris on said tract, which offer remained open continuously thereafter and was confirmed prior to October 4, 1950, in a telephone conversation between the president of the corporation and the County Land Agent, and was communicated to the Chairman of the County Commissioners prior to October 4, 1950, and thereafter, and before February 7, 1951, this offer was increased to $50,000, which offer was communicated to the County Land Agent and the County Manager. It is further alleged that the purported conveyance was neither sealed nor delivered on October 4, 1950, nor until February 7, 1951, and therefore had no legal efficacy until February 7, 1951; that on October 4, 1950, H. T. Bomar offered in writing to purchase said timber for $45,000, which offer was delivered to the County Manager on October 4, 1950, and was submitted to the full Board of County Commissioners on October 6, 1950, accompanied by a cashier's check for $45,000; that, before noon on October 4, 1950, J. W. Starr and Sons Lumber Company, by written offer addressed to the County Commissioners, offered to buy said timber for $20 per thousand board feet, plus the 55,000 feet of oak wanted by the county, which offer was accompanied by an estimate that the timber would bring the county in excess of $50,000, and that said offer was considered by the full Board of Commissioners on October 6, 1950. The petition alleges that, with this knowledge on the part of the County Commissioners, their actions in directing the sale of said timber for an inadequate consideration to the defendant Malcom were illegal, unwarranted, and unauthorized; and that the said purported conveyance to him is ultra vires, null, void, illegal, and of no effect, for the reasons: (a) that the law does not permit the arbitrary rejection by County Commissioners of offers of higher prices and the arbitrary preference of Malcom's bid over others, which were higher in the sale of the said Fulton County timber; (b) county property is required by law to be sold on terms most advantageous to the public; (c) in selling Fulton County property, the County Commissioners may not act arbitrarily, and that the preference of the lower bid of Malcom and the rejection of the aforesaid higher bids for said timber were arbitrary, unreasonable, a palpable abuse of discretion, without any rational basis, ultra vires, and beyond the legal authority of the County Commissioners; and (d) the inadequacy of price of said purported conveyance is so great as to render it an unconscionable bargain, which no person in his senses would make on the one hand, and which no fair and honest person would accept on the other hand; and that such inadequacy of price is sufficient, of itself, to be evidence of gross mismanagement and flagrant waste in dealing with county property, and to constitute legal fraud and a violation of the requirements of faithfulness to public trust.

The petition prayed: (1) that the purported conveyance to Malcom be declared null, void, and of no effect as being contrary to law and without authority of law; (2) that all of the defendants be restrained from changing the status quo with respect to such timber until further order of the court; (3) that the County Commissioners be temporarily restrained from taking any action, official or otherwise, affecting said timber or the land on which it is growing until further order of the court; (4) that Malcom be temporarily restrained and permanently enjoined from entering upon the land and cutting and removing such timber, and that Fulton County be required to return to said Malcom all moneys which may have been received from him under said purported conveyance; (5) for such other and further relief as the nature and merits of the case might authorize; (6) for rule nisi; and (7) for process.

All of the defendants filed answers, and the defendant Malcom filed simultaneously his general and special demurrers to the bill on various grounds, his motion to strike as a party plaintiff Paul Webb in his capacity as solicitor-general of the Atlanta Judicial Circuit, and his plea of estoppel by judgment based on the decision in Malcom v. Fulton County, 209 Ga. 392, 73 S.E.2d 173, supra.

The trial court overruled Malcom's demurrers and sustained general demurrers of the plaintiffs to the motion to strike the solicitor-general as a party plaintiff, and also sustained the plaintiffs' general demurrer to Malcom's plea of estoppel, to all of which rulings Malcom excepts. Thereafter, the case came on for trial before a jury, which, after the introduction of evidence by both sides, the jury returned a verdict in favor of the plaintiffs, ordering a cancellation of the contract and declaring it null and void. The defendant Malcom, having previously moved the court for a directed verdict in his favor, thereupon filed his motion for judgment notwithstanding verdict, and also his motion for a new trial, which was subsequently amended by the addition of special grounds. Both the motion for judgment notwithstanding verdict and the motion for new trial as amended were denied by the trial court, and Malcom sued out the present bill of exceptions, naming as defendants in error the original plaintiffs and also his codefendants, Fulton County and its named commissioners, assigning error on the denial of the amended motion for a new trial and on the previous rulings on demurrer.

Counsel for the plaintiff in error state that the issues now presented for determination by this court are: (a) Was the solicitor-general, in his official capacity, a proper party plaintiff? (b) Were the present plaintiffs, suing as citizens and taxpayers of Fulton County, estopped by the judgment previously rendered against the County, suing in its own behalf, in Malcom v. Fulton County, 209 Ga. 392, 73 S.E.2d 173, supra? And (c) did the original petition allege and did the evidence sustain such a cause of action as would justify a court of equity in canceling and rescinding a contract by the county which has already been held by this...