Ripley v. Eady

• Decision Date: 03 February 1899
• Citation: 32 S.E. 343,106 Ga. 422
• Parties: RIPLEY v. EADY et al.
• Court: Georgia Supreme Court

32 S.E. 343

106 Ga. 422

RIPLEY v. EADY et al.

Supreme Court of Georgia

February 3, 1899

Syllabus by the Court.

1. The breach of an ordinary bond, conditioned for the performance of a specified act, does not give to the obligee an absolute right to recover the amount named in the face of the instrument. When such a breach occurs, he should sue for, and is entitled to recover, only the damages actually sustained.

2. A trial judge before whom a demurrer to a petition has been argued, and who reserves his decision thereon, is not bound before rendering a judgment upon the demurrer, to give the plaintiff an opportunity to amend his petition.

Error from city court of Atlanta; H. M. Reid, Judge.

Action by T. J. Ripley, receiver of the State Savings Bank, against Eady & Mayfield. Demurrer to petition sustained, and plaintiff brings error. Affirmed.

Anderson Felder & Davis, for plaintiff in error.

P. F Smith, for defendants in error.

LUMPKIN P.J.

1. The bill of exceptions in the present case alleges error in sustaining a demurrer to the plaintiff's petition. The action was brought by Ripley, as receiver of the State Savings Bank. He alleged that Eady & Mayfield, a partnership had made and delivered to the bank a bond in the sum of $1,000, the condition of which was that if Eady & Mayfield failed and refused, on demand, to purchase from the bank certain shares of stock in a land company, at the stipulated price of $1,000, then the makers of the bond were to be liable thereon. The petition alleged that the receiver had duly made upon the defendants a demand to purchase this stock, which was tendered to them by him, and that they "refused to accept said stock or to pay said sum, whereby said Eady & Mayfield became indebted to petitioner in the sum of $1,000, besides interest at 7 per cent., *** for which petitioner prays judgment against both of said defendants.". It will thus be seen that the action was not one for damages because of an alleged breach of the contract set forth in the bond, but was an action of assumpsit, whereby the plaintiff sought to recover the face of the bond, with interest, just as if it had been a promissory note. It is manifest that the action was improperly brought. See Dart v. Association, 99 Ga. 794, 27 S.E. 171. Upon the facts alleged, the measure of damages which the plaintiff could recover was the difference between the contract price of the stock in question and...