Phillips v. Riser

• Citation: 70 S.E. 79,8 Ga.App. 634
• Decision Date: 31 January 1911
• Docket Number: 2,642.
• Parties: PHILLIPS et al. v. RISER.
• Court: United States Court of Appeals (Georgia)

70 S.E. 79

8 Ga.App. 634

PHILLIPS et al. v. RISER.

No. 2,642.

Court of Appeals of Georgia

January 31, 1911

Syllabus by the Court.

There was no error in overruling the demurrer filed by the defendants, or in striking their plea.

Error from City Court of Tifton; R. Eve, Judge.

Action by E. F. Riser against J. J. L. Phillips and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Fulwood & Murray, for plaintiffs in error.

Geo. E Simpson and Napier & Maynard, for defendant in error.

RUSSELL J.

E. F Riser brought suit in the city court of Tifton against P. D Phillips, J. J. L. Phillips, and C. W. Young as guarantors. Young is a citizen of Tennessee and was not served with process. The defendants demurred to the petition, but the demurrers were overruled. The plaintiff then moved to strike the defendants' pleas, and, this motion being granted the defendants have filed this writ of error to review these rulings.

It appears from the petition that Riser purchased 13 shares of stock in the Southwestern Brokerage & Investment Company, of Memphis, Tenn., on May 8, 1908. Attached to the stock certificate evidencing his ownership of these shares was the following guaranty, which formed the basis of the suit:

"This guaranty, attached to stock certificate No. 115 for thirteen shares of the capital stock of the Southwestern Brokerage & Investment Company, witnesseth: That, whereas, the undersigned, P. D. Phillips, Fender, Ga., J. J. L. Phillips, Tifton, Ga., and C. W. Young, Memphis, Tenn., are largely interested in said corporation and the sale of its stock: Now, therefore, it is understood and agreed by and between said parties and the owners of the shares of stock represented by said certificate that, should said owner desire to sell said stock after 18 months from the date of the issuance of said certificate, said parties will, after 18 months from said date, purchase the same, paying therefor the face value of the certificate, together with 6 per cent. interest per annum thereon from the date of issuance to the date of payment. Should said owner elect to avail himself of this guaranty, he must so notify in writing said parties of his election to do so, giving them six months' notice before the date he will ask repayment. After two years from the date of issuance of said certificate this guaranty shall cease, and become null and void.

"Witness the hands of said parties this 8th day of May, 1908.

"[Signed] P. D. Phillips.

"J. J. L. Phillips.

"C. W. Young."

The petitioner alleges that, being desirous of selling his stock, he notified each of the defendants on April 30, 1909, by mailing to each of them, from Woodford, Okl., by registered mail, the following notices: "Dear Sir: In accordance with your agreement, dated May 8, 1908, in which you and others guaranteed the stock (13 shares) of the Southwestern Brokerage & Investment Company purchased by me, I hereby notify you that I desire to sell same to you, and demand that six months after May 8, 1909, you pay to me the face value of said stock, with 6 per cent. interest from the date thereof. Please inform me which bank you desire said stock sent to. Very respectfully, E. F. Riser." He avers that all of the defendants failed and refused to pay the sum of money agreed upon in the guaranty, although the stock has been tendered and payment demanded according to its terms. The certificate of stock is signed by P. D. Phillips, as president, and J. J. L. Phillips, as secretary, and it is alleged in the petition that a consideration moving the petitioner to make the purchase of the stock was a guaranty of these individuals, who were its executive officers.

The defendants demurred to the petition, upon the ground that it failed to set forth a cause of action and failed to disclose that the plaintiff had complied with the terms of the guaranty, and also upon the ground that the suit was prematurely brought. They demurred, also, upon the ground that the stock certificate was dated May 8, 1908, and that by the terms of the guaranty the plaintiff was bound to hold the stock for 18 months from May 8, 1908, before he could exercise his right to sell it to the defendants; also upon the ground that the petition failed to show that the plaintiff notified the defendants in writing of his election to sell the stock 18 months after the date of the guaranty. A further demurrer attacked the petition upon the ground that the contract sued on was without consideration to support it, and was nothing more than an offer of the defendants to buy stock issued by a third party, to wit, the Southwestern Brokerage & Investment Company, after a lapse of 18 months from May 8, 1908, and that the contract, failing to bind the plaintiff to do anything and not being signed by the plaintiff, is null and void. We think the court properly overruled each...