Dekle Brokerage Co. v. Kirk ( 1961 )

Frankum, Judge.

The allegations of the plaintiff's petition show that the defendant, George W. Kirk, was president and “majority stockholder” of George W. Kirk Co., Inc., and on June 30, 1959, he requested the plaintiff to consign certain farm products to George W. Kirk Co., Inc.; that such products were delivered by the plaintiff to George W. Kirk Co., Inc.; that on July 13 and July 20, 1959, the defendant ordered from the plaintiff on open account additional farm products for George W. Kirk Co., Inc., which products were delivered to George W. Kirk Co., Inc., by the plaintiff; that the defendant knew George W. Kirk Co., Inc. was insolvent and had been insolvent for at least three years prior to said transactions; that on August 24, 1949, George W. Kirk Co., Inc., was adjudged bankrupt; that the plaintiff has not been paid for any of said farm products; that “due to the lack of any substantial assets in that company the plaintiff will be unable to ever recover from the George W. Kirk Company, Inc., for the farm products delivered to that company by the plaintiff,” and “that the transactions entered into by the defendant with the plaintiff constitute a violation ... of Georgia Law [Code §§ 5-9914 and 5-9915] and are therefore negligence per se as a direct result of which the plaintiff has been injured in the amount sued for.”

The plaintiff does not contend that the defendant represented George W. Kirk Co., Inc., to be solvent, or that the defendant did anything to prevent the plaintiff from ascertaining the financial condition of the corporation. The plaintiff does not contend that the defendant made any false representation or in any way practiced fraud upon the plaintiff. No contention is made that the plaintiff, when making the consignment and the two sales of farm products to George W. Kirk Co., Inc., did not know of such insolvency. The plaintiff's suit is based solely on the theory of negligence, and as such, it does not set forth a cause of action. The general demurrer of the defendant to the plaintiff’s petition was properly sustained.

Decided January 19, 1961. Ha'as, White & Douglas, Benj. B. Blackburn, III, for plaintiff in error. Frank A. Bowers, contra.

Judgment affirmed.

Townsend, P. J., Carlisle and Jordan, JJ., concur.