Owenby v. Georgia Baptist Assembly

• Decision Date: 16 February 1912
• Citation: 74 S.E. 56,137 Ga. 698
• Parties: OWENBY v. GEORGIA BAPTIST ASSEMBLY.
• Court: Georgia Supreme Court

74 S.E. 56

137 Ga. 698

OWENBY v. GEORGIA BAPTIST ASSEMBLY.

Supreme Court of Georgia

February 16, 1912

Rehearing Denied Feb. 29, 1912.

Syllabus by the Court.

In mutual subscriptions for a given object, the promise of the others is a good consideration for the promise of each.

(a) It is not necessary that the payee should be named in a subscription paper. It is sufficient if there is an acceptance by the party intended.

(b) The test of mutuality of a promise is to be applied, not as of the time it was made, but as of the time when it is to be enforced. Therefore a promise in a subscription paper for a given object may be unilateral when made; but, if the party intended accomplishes the object as contemplated, then the promise is rendered valid and binding.

(c) The ground of demurrer to the declaration, not controlled by the rulings above announced, if error at all, was not hurtful to the defendant.

There was no sufficient assignment of error to the ruling of the judge in holding that he was not disqualified to preside in the trial of the case.

There was no error in the admission or rejection of evidence.

A nonsuit was properly refused, and the verdict directed was demanded under the law and the evidence.

Error from Superior Court, Fannin County; N. A. Morris, Judge.

Action by the Georgia Baptist Assembly against W. G. Owenby. Judgment for plaintiff, and defendant brings error. Affirmed.

A. S J. Hall and Gober & Griffin, for plaintiff in error.

Thos A. Brown, O. R. Drupree, Wm. Butt, and J. Z. Foster, for defendant in error.

FISH C.J.

The Georgia Baptist Assembly sued out an attachment against Owenby as a nonresident of the state. A levy was made on certain personalty and realty. The defendant replevied the personalty, and, upon the filing of a declaration on the attachment against him, appeared and pleaded to the merits. The substance of the declaration as amended, after portions thereof had been stricken on demurrer, is as follows: The defendant is indebted to the plaintiff $500 on a subscription paper signed by the defendant and numerous other cosubscribers, a copy of which is: "Blue Ridge, Fannin County, Georgia, March 5, 1908. We, the undersigned citizens of Blue Ridge and vicinity, promise and agree to give the amounts set opposite our names for the purpose of inducing the Baptists to locate their Chautauqua or assembly grounds at Blue Ridge, Georgia." The amount opposite the defendant's name is $500. Subsequently to the date of the subscription paper, the subscribers, or nearly all of them including the defendant (who owned a large amount of real estate in the city of Blue Ridge, where he resided at the time he signed the paper), in order to more successfully accomplish the purposes for which the subscriptions were made, namely, to secure the location of the assembly grounds of the Georgia Baptists in the city of Blue Ridge, had themselves incorporated in this state under the name of the Business Men's League of Blue Ridge, and soon thereafter organized the corporation; the defendant being one of the original incorporators, and not having since severed his connection with the corporation. Thereafter the plaintiff, having been incorporated as the Georgia Baptist Assembly, and acting upon the inducements offered by the signers of the subscription paper, accepted the offer made therein, and located its assembly grounds in the city of Blue Ridge. Upon such acceptance, the Business Men's League of Blue Ridge, in pursuance of a written resolution adopted by it, authorizing its president and secretary so to do, transferred in writing all of its interests in and to such subscription list, which transfer was signed by the president and secretary of the league, the corporate seal being thereto attached. Some of the subscribers have paid their subscriptions in full, others have paid half of the amounts they subscribed, and the money so paid has been invested in certain described lands in or near the city of Blue Ridge, which have been conveyed to the plaintiff to be used in connection with its assembly grounds; and the plaintiff, relying upon the agreement set forth in the subscription, has expended large sums of money in locating its assembly grounds in the city of Blue Ridge.

The amendment to the declaration alleged: "The defendant assented to every act of the Business Men's League of Blue Ridge, and of the plaintiff, looking to the location of said assembly grounds at Blue Ridge, and was a party to it; and he is now estopped from dissenting from such actions taken by said corporations. The plaintiff has acted upon the faith of the said acts of defendant and said Business Men's League of Blue Ridge, and has invested and spent large sums of money in establishing its assembly grounds at Blue Ridge, Georgia." The defendant refused to pay any part of his subscription, and has removed from the state. When the demurrers came on to be heard, the judge held himself disqualified to preside. By consent of counsel for the respective parties the case was "referred" to an attorney of the court as judge pro hac vice; and it was further ordered, by agreement, that the demurrers be heard in vacation, with the right of exception preserved. They were so heard. Some of them were overruled, while others were sustained. The defendant filed exceptions pendente lite to the refusal to sustain all of the demurrers. When the case subsequently came on for trial during term, the presiding judge held himself not to be disqualified to try the case, and entered an order revoking the former order, in which he had held himself disqualified. To this the defendant objected, contending that the judge was disqualified to preside. Upon the trial the defendant, at the conclusion of the evidence for the plaintiff, moved for a nonsuit, which was denied. Finally a verdict was directed by the court in favor of the plaintiff against the defendant for the amount of his subscription, with interest thereon at 7 per cent. from the date of the subscription paper. The defendant filed a direct bill of exceptions, assigning error upon his exceptions, pendente lite, upon the ruling of the judge holding himself not disqualified to try the case, upon the admission and rejection of certain evidence, upon the overruling of the motion for nonsuit, and upon the direction of the verdict.

1. The grounds of demurrer to the declaration are, in effect, as follows: (a) No consideration is expressed in the subscription paper. (b) No payee is named therein. (c) The agreement it contains is unilateral. (d) There is no promise in it to the Business Men's League of Blue Ridge, nor is it alleged that the league had any connection with or interest in such paper, so as to give it the right to transfer the same, or that the defendant ever agreed that it be transferred by the league, to the plaintiff. In our opinion, there is no merit in any of these grounds of demurrer.

(a) "In mutual subscriptions for a...