Capps v. Edwards , 1908 Ga. LEXIS 245 ( 1908 )

Atkinson, J.

1. An oral motion to dismiss the plaintiff’s ease, because no cause of action is set out in the petition, may be made at any stage before verdict. Kelly v. Strouse, 116 Ga. 872 (1). If a defendant neglects at the appearance term to point out any particular defect by way of written demurrer, the whole petition, including the exhibits, will be examined to ascertain whether a cause of action is set forth. The question, in an oral motion to dismiss, is not whether any particular allegation has been defectively pleaded, but whether the petition in its entirety fails to set out -a cause of action. It was insisted, on the oral motion to dismiss, that the consideration for the promise is alleged to be the plaintiff’s subscribing $6,500 to the Capps Cotton Mill, and that there is no allegation in the petition that the plaintiff had subscribed to any stock. It is true it is not alleged in totidem verbis that the plaintiff had subscribed tcr's'tock in the Capps mill, but it does appear that, acting upon the agreement, he procured the company to issue to him the amount of stock for which he was obligated to subscribe, and for which he paid the company its par value, and that the stock was issued subsequently to and in pursuance of the contract, and a certificate issued by the Capps Cotton, Mill to the plaintiff. The issuance of the stock necessarily presupposes that there was an application for the same; and it is immaterial, after the issuance of the stock, whether the application was made verbally or by a written stock subscription, as the whole purpose of the subscribing to the stock is to render the subscriber liable to the corporation and bound to take the stock. When the stock has been issued and paid for, the question of stock subscription becomes immaterial.

2. Although the -petition prays for the specific performance of the executory contract of sale, and, alternatively, that, if this relief can not be afforded, he recover damages, yet it is clear, from the allegations of the petition and from its general structure, that the suit is for a breach of the executory contract of sale declared upon. The petition sets out a written agreement whereby the plaintiff agreed to sell 65 shares of corporate stock for a stipulated amount at a certain time, and the defendant agreed to buy upon those terms. The tender of the stock is alleged, and the refusal of the defendant to comply with the terms of his contract and buy the stock is also alleged; and the suit, therefore, is to recover the value of the stock according to the terms of the contract.

3, 4. Several paragraphs of the plea, relating to the history of the stock subscription of the Capps Cotton Mill, and especially that paragraph which alleges that the subscription of the plaintiff to the $6,500 of stock had already been made at the time the contract sued on was entered into between the parties, and for that reason the contract was nudum pactum, should have been stricken, for the reason that when the case was formerly before this court (122 Ga. 827), it was held that the contract sued on was not ambiguous, and comprehended an agreement on the part of the defendant and the plaintiff for the sale of stock in a commercial enterprise. The agreement to sell furnished the consideration for the' agreement to buy. The remainder of the answer, which, alleges that certain negotiations were pending between the plaintiff and the defendant -prior to the execution of the contract' declared upon, as furnishing a basis for recoupment, should have been stricken, for the reason that all prior negotiations are merged into the subsequent written contract. The 'allegations are not sufficient as an attack upon the contract on the ground of fraud, because fraud, to be thé basis of rescission or reformation of a contract, must refer to fraud in the execution thereof. A written contract will not be rescinded or reformed because of the omission of any antecedent parol condition or stipulation, unless it is alleged that it was omitted at the time of the execution of the ■contract, through fraud, accident, or mistake. Smith v. Newton, 59 Ga. 113. See also Arnold v. Malsby, 120 Ga. 586. From what has just been said it follows that all that part of the answer which the court refused to strike, and of which complaint is made in the bill of exceptions, should have been stricken on demurrer. The answer admitted the allegations of the petition, except as to the defendant’s liability; and, inasmuch as such allegations set out a cause of action, it would have been proper for the court, after striking the objectionable parts of the answer, to direct a verdict in favor of the plaintiff: this upon the ground that there would be no issue between the parties. Therefore any possible error committed on the trial would be harmless, and need not be considered.

Judgment in both cases affirmed.

All the Justices concur, except Holden, J., who did not preside.