Weatherly v. Cotter , 142 Ga. 457 ( 1914 )

Atkinson, J.

1. 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 Civil Code §§ 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. R. 197, 4 Ann. Cas. 551), and A. & B. Ry. Co. v. Johnson, 127 Ga. 392 (56 S. E. 482, 11 L. R. A. (N. S.) 1119), is not applicable.

2. 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 one thousand dollars, 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. Civil Code, § 3222; Hightower v. Ansley, 126 Ga. 8 (54 S. E. 939, 7 Ann. Cas. 927); Morse v. Douglas, 112 App. Div. 798 (99 N. Y. Supp. 392); Cook on Corporations (7th ed.), § 339.

September 23, 1914. Rehearing denied October 2, 1914.

Complaint. Before Judge Grabam. Pulaski superior court, April 11, 1913.

H. F. Lawson, for plaintiff in error. W. L. & Warren Grice, contra.

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

Judgment reversed.

All the Justices concur.