Ripley v. Eady & Mayfield , 106 Ga. 422 ( 1899 )

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 & May-field 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 $1,000.00, 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. Southwestern Building & Loan Assn., 99 Ga. 794. 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 its market valúe, in case it was really worth less than $1,000. The -action should have been brought accordingly, and the necessary facts alleged.

The demurrer presented the proper objection to the plaintiff’s petition. The court sustained the demurrer on the ground that the plaintiff failed to allege that the bank had itself made a demand upon Eady & Mayfield to purchase the stock. The right conclusion was reached, though the reason given for the same by the judge was not a good one, as not infrequently happens. Lee v. Porter, 63 Ga. 346. When the assets of the bank went into the hands of the receiver, he had the same right to make a demand upon Eady & Mayfield as the bank had previously enjoyed. The judgment rendered was, however, demanded, and will not be set aside merely because it was founded upon the wrong reason.

2. Another point in' the case arose as follows: After hearing argument on the demurrer, the trial judge reserved his decision for a few days, and then entered an order sustaining the demurrer and dismissing the petition. Counsel for the plaintiff in error complain that the judge should have given them notice of his intention to enter this order, so that they might have an opportunity to amend. We do not understand that the judge was bound to do this. The question at issue had been presented and argued, and nothing was left but for the judge to decide it and frame an order accordingly. Even if the petition was amendable, no offer to amend was presented in due time. The duty of diligently looking after and protecting the plaintiff’s interests devolved upon counsel, not upon the judge, who, so far as appears, was not asked- at the hearing to grant, an opportunity to amend before rendering his decision, in the event he should determine the demurrer was well taken.

Judgment affirmed.

All the Justices concurring.