Trustees of Jesse Parker Williams Hospital v. Nisbet

• Decision Date: 14 February 1940
• Docket Number: 13054
• Citation: 7 S.E.2d 737,189 Ga. 807
• Parties: TRUSTEES OF JESSE PARKER WILLIAM HOSPITAL et al. v. NISBET.
• Court: Georgia Supreme Court

7 S.E.2d 737

189 Ga. 807

TRUSTEES OF JESSE PARKER WILLIAM HOSPITAL et al. v. NISBET.

13054

Supreme Court of Georgia

February 14, 1940

Rehearing Denied March 16, 1940.

Syllabus by the Court.

1. Florida not being one of the thirteen original colonies or derived from territory belonging thereto, a contract of that State will be construed by the courts of this State according to the statutes and laws here of force, in the absence of any pleaded particular statute of that State governing the construction of the contract, or any pleaded general statute adopting the common law of England.

2. Ordinarily executory contracts require a valuable consideration, or a good consideration founded either on love and affection toward one to whom there is a natural duty, or on some strong moral obligation supported either by an antecedent legal obligation presently unenforceable, or by some present equitable duty.

3. The Code provisions relating to specialties merely express principles of the common law, under which instruments such as bonds, when not only sealed but formally delivered by solemn ceremony or its equivalent, were recognized as specialties and as such required no consideration. But these rules did not preclude the defense of want of consideration as to instruments such as promissory notes, which, although under seal, did not conform to other requirements of a common-law specialty. Especially was this true where, as here, the recitals of the instrument showed the actual absence of a consideration, and, if the writing were taken as an ordinary contract under seal, would thus preclude from operation any sort of presumption as to a consideration.

4. The common law recognized as specialties, requiring no consideration, not only 'double' or conditional bonds with a penalty and defeasance clause, but other sealed and formally delivered obligations known as 'single' bonds. These rules as to specialties remain of force in this State. They include like instruments creating gifts of money payable in the future. The instrument here in question created a gift of money payable in futuro, and conformed to all the requirements of a common-law single bond, by its character, sealing, formal delivery, acceptance by the obligee, recital of delivery in the presence of an attesting witness, and formal acknowledgment of delivery before an authorized officer of the State of its execution, even though some of these formalities may have been unnecessary to make the instrument a common-law specialty.

Accordingly it was not open to the defense of a want of consideration.

5. While the petition, under our uniform-procedure act, prayed both for a judgment at law on the instrument and for equitable relief relating to assets of the defendants, the equitable relief was merely incidental to the common-law judgment. Therefore the legal rules, precluding an attack on the instrument for want of consideration, were applicable, whether or not the holding of earlier decisions, that no consideration is necessary in the case of a specialty even in a court of equity, also should be applied.

6. The petition did not show a bar of the action by any statute of limitations or by laches.

7. The court did not err in overruling the demurrers to the petition, even though one incorrect reason was assigned for the decision.

Mrs. Idella Holloway Nisbet filed against the 'Trustees of Jesse Parker Williams Hospital,' a corporation, and against the trustees under the will of Mrs. Cora B. Williams, deceased, a petition praying for a money judgment against the corporation for $210,000, plus interest, and alternatively for a money judgment for such amounts against the defendants to be paid out of the sum in the hands of the corporation which was being administered by the defendants, and for an injunction against changing the status or identity of assets in their hands of the defendants pending the suit as to a sufficient amount to pay the sum claimed. The claim for a money recovery was based on an instrument as follows:

'Lanark, Fla., April 16, 1923.

'Mr. J. L. Nisbet,

'Lanark, Florida.

'Dear Sir:

'Please purchase for me and my account all the capital stock of the Ga., Fla. & Alabama Ry. Co., not now owned or controlled by me. You are authorized to take option for the purchase of the same in such form as you think best. Since the fall of 1914 you have worked for me and my business interests at a comparatively small salary and compensation, especially in view of your responsibilities; true, I have verbally instructed you to take credit for and charge to my account on the books of my land interests some additional monies, but the salaries and these such other monies and credits that you have so received from my business interests have been and are, all of them, out of proportion to the responsibilities you have borne, the work you have done, what you have accomplished and the faithfulness of your service. Therefore, in the event of any sale by me, my estate, my heirs, executors, administrators, and assigns, of more than 50 per cent. of the securities of the Ga., Fla., & Ala. Ry. Co., now owned by me, or hereafter to be owned or held by me, my heirs, executors, administrators and assigns, or my estate, or the placing if the control of the property of that railroad in other hands, you, your heirs and assigns, at the time of such sale or at the time of such action, are to receive the sum of $10,000, and thereafter, on the 3rd day of January of each succeeding calendar years, for ten calendar years, you and they are to receive from the same source the sum of $20,000, a total payment to you, your heirs and assigns, of $210,000 to be paid you and them by me, my estate, my heirs, executors, administrators, and assigns: this all in addition to any other monies or compensation of any sort that you may now receive or may hereafter receive from me, my estate, my heirs, executors, administrators, and assigns. I hereby ratify all your acts, deeds, and accounts as performed and kept by you, and all records and accounts and money transactions handled by you for me individually, and all actions and accounts handled by you as general agent of the railway company, Ga., Fla. & Ala. Ry. Co., and as secretary and treasurer of J. P. Williams Land Company, a Florida corporation, and as an official of any sort or a director of either or both of said corporations, and as an official or director of the Lanark Improvement Company and the Lanark Hotel Company. 'In testimony of the foregoing I have hereunto set my hand and seal, this 16th day of April, 1923, at Lanark, State of Florida.

'Cora B. Williams (L.S.) individually, and as president of the Georgia, Florida & Alabama Railway Company, and as president of the J. P. Williams Land Company and as president of the Lanark Hotel Company, and as president of the Lanark Improvement Company.

'Accepted: J. L. Nisbet (L.S.)'

'Signed, sealed, and delivered in our presence:

'Ruby L. Hill.'

Attached to this instrument was an acknowledgment by its maker, bearing the same date, before a notary public of Florida, acknowledging that she had 'signed, sealed, and delivered' it for the purposes therein expressed.

On December 26, 1927, and February 27, 1932, Nisbet executed assignments of the instrument to his wife, Idella Holloway Nisbet, the plaintiff. In the latter writing, he stated: 'I further affirm that the purchase of 'all of the capital stock of the Georgia, Florida & Alabama Railway Company,' not then owned or controlled by the said Cora B. Williams, was in no way part of the service on account of which these monies [referred to in the assignment as in the original instrument] were to become due me and are now due me.' The petitioner sued on the instrument quoted, as its assignee under these writings. The petition filed in February, 1939, alleged that Mrs. Cora B. Williams, the maker of the instrument, died in March, 1924, leaving an estate valued at from $1,000,000 to $3,000,000, with a will providing for certain trusts to the defendants; that Nisbet, the assignor, died in February, 1939; that all of the securities in the Georgia, Florida & Alabama Railway Company owned by Mrs. Cora B. Williams at the time said contract and acknowledgment was signed were sold and transferred for value by her executor under authority in her will and under authority of an order of Fulton superior court during the year 1926; that no part of the money due under the instrument had been paid either to Nisbet or the plaintiff assignee; that under the will of Mrs. Williams the defendants took over the residuary estate of the value of approximately $2,500,000, without paying the debt and in violation of plaintiff's rights; and that upon demand they declined to pay the amount claimed.

The defendants demurred to the petition as stating no cause of action or ground for the relief prayed, and because 'it appears from the petition and the exhibits thereto that the purported contract with Mrs. Cora B. Williams is void and unenforceable and not founded on any valid or legal consideration,' and is 'a mere offer of a gratuity,' and 'it appears from the petition and the exhibits thereto that the suit is barred by laches and unreasonable delay.' The judge overruled the demurrers and held that 'the alleged obligation * * * is under seal;' that 'there is no direct present and valuable consideration, unless such be adduced from a continuance of service and instructions to buy more stock, which is doubtful, but which may provide a moral obligation;' that 'the moral obligation, if any, is adduced from past services paid in full, but not in an amount sufficient to satisfy the obligor, or in an amount commensurate with the service rendered, and in view of the other circumstances;' that 'the...