Fulton Auto Supply Co. v. Sullivan , 148 Ga. 347 ( 1918 )

'Fish, C. J.

(After stating the foregoing facts.) It appears from the petition, and the copy of the account thereto attached as an exhibit, that there was an account of many items, beginning with December, 1910, and ending with June 29, 1911, upon which was due a balance of $20.73. In view of the allegations of the petition it is clear that the defendant, Sullivan, contracted that portion of the account while he was doing business as an individual under the name of the Eome Motor Car Company, prior to its incorporation, and that he was liable for the same in this suit. The Eome Motor Car Company was chartered on May 12, 1911, and soon thereafter began to operate, taking over the business and assuming liability for Sullivan’s debts. It is evident, therefore, that the corporation became also liable for the $20.73, which Sullivan in his business owed the plaintiff. There can be no question that, in accordance with the petition, the Eome Motor Car Company was indebted to the plaintiff for the balance of the account as set forth, as it appears that the goods were sold to it by the plaintiff.

* Considering the entire petition, including the exhibits attached thereto, it is fair to say that the Eome Motor Car Company was a one-man corporation, that is, that A. E. Sullivan was the sole owner of all of its stock. The petition expressly alleges that he was the principal, if not the sole, stockholder of the corporation; and in the contract between him and Jones, a copy of which is attached t'o the petition as an exhibit, there is a recital “that A. E. Sullivan is the owner of all the capital stock of the Eome Motor Car Company, and that the Eome Motor Car Company is the owner of the personal property shown by the exhibit hereto, and that said A. E. Sullivan is authorized to sell the same.” Sullivan appropriated to his individual use all of the assets of the corporation, the Eome Motor Car Company, by selling most of them to' Jones, and retaining the balance, and by such conduct rendered the corporation insolvent. It is alleged that the value of the assets so appropriated by Sullivan was more than the amount of the debts owing by the corporation. Having demonstrated the liability of the corporation for plaintiff’s debt, we are of the opinion that in an equitable action against the corporation and Sullivan he would be liable for appropriating the assets of the corporation in the circumstances above indicated; and the present case being in equity, it was not essential, in order to maintain it, that the plaintiff should have first sued the defendant corporation to judgment and had execution issued and return of nulla bona made; nor was there a misjoinder of parties or of causes of action. The petition was not subject to general demurrer, and the trial court erred in ruling to the contrary. See Burns v. Beck & Gregg Hardware Co., 83 Ga. 471 (10 S. E. 121); Ellis v. Pullman, 95 Ga. 445 (22 S. E. 568); Lamar v. Allison, 101 Ga. 270 (28 S. E. 686); Tatum v. Leigh, 136 Ga. 791 (72 S. E. 236, Ann. Cas. 1912D, 216); Commercial Investment Co. v. Williamson, post, 353.

Judgment reversed.

All the Justices concur.