Weatherly v. Cotter

• Decision Date: 23 September 1914
• Docket Number: 593.
• Citation: 83 S.E. 104,142 Ga. 457
• Parties: WEATHERLY v. COTTER.
• Court: Georgia Supreme Court

83 S.E. 104

142 Ga. 457

WEATHERLY v. COTTER.

No. 593.

Supreme Court of Georgia

September 23, 1914

Syllabus by the Court.

Where after a defendant is served and suit is pending against him he moves from one part of the county to another, and the territory embracing his changed residence is subsequently formed into a new county, such defendant is not entitled, by virtue of Civ. Code 1910, §§ 829, 5526, 6543, to have the case removed to the new county for trial. The principle announced in Pope v. State, 124 Ga. 803, 53 S.E 384, 110 Am.St.Rep. 197, 4 Ann.Cas. 551, and Atlantic & Birmingham R. Co. v. Johnson, 127 Ga. 392, 56 S.E. 482 11 L.R.A. (N. S.) 1119, is not applicable.

An owner of an industrial plant, being desirous of forming a corporation to take over the business of such plant, induced another to enter into a contract to subscribe for a certain amount of shares of the capital stock of the corporation being promoted, under the following parol agreement: That if the prospective subscriber would subscribe and pay for 10 shares of the capital stock of the proposed corporation, of the par value of $1,000, the promoter would give the minor son of such person employment in the proposed corporation and that at any time the prospective subscriber became dissatisfied with the stock the promoter would buy it back from him at its par value, with interest. The proposed purchaser accepted the offer, paid $1,000, and received a certificate of shares of stock in the corporation after it was formed. The corporation took over the business of the promoter and gave the plaintiff's son employment under the contract. Subsequently the subscriber brought suit against the promoter, setting up facts as above indicated, and alleging that the stock had no market value, and that he was dissatisfied with his interest in the corporation, and had so stated to the promoter, and made demands on him to purchase his stock pursuant to the terms of his contract, and made a continuing offer to deliver the stock to the promoter, to be paid for at par value, with interest. Held, that the petition was subject to demurrer, on the ground that the contract rested in parol. Civ. Code 1910, § 3222; Hightower v. Ansley, 126 Ga. 8, 54 S.E. 939, 7 Ann.Cas. 927; Morse v. Douglass, 112 A.D. 798, 99 N.Y.S. 392; Cook on Corporations (7th Ed.) § 339.

As the petition should have been dismissed on demurrer, the further trial of the case was a mere...