American Surety Co. v. Groover , 64 Ga. App. 865 ( 1941 )

The court did not err in sustaining the general demurrer to the petition as amended.

DECIDED MARCH 12, 1941. ADHERED TO ON REHEARING APRIL 5, 1941. In its petition the American Surety Company of New York sued Mrs. Elizabeth L. Groover, W. M. Coney Company Inc., Louis A. Brantley "individually and as . . receiver . . in the case entitled Elizabeth L. Groover vs. Robert N. Groover and W. M. Coney Company Inc.," and Firemen's Fund Indemnity Company of San Francisco, California, "as surety upon the said receiver's bond," to recover $1580.25. The defendants demurred generally and specially. The plaintiff offered to amend its petition by substituting therefor a petition which was substantially the original petition, with a few amplifications thereof. The court allowed the amendment "subject to objection and/or demurrer." The defendants then renewed "each and every ground of the demurrers heretofore filed . . to the petition as amended," and objected "to the allowance of said amendment on each and every ground set forth in the demurrers herein referred to." The court adjudged that "all grounds of the general demurrer and renewal thereof . . are sustained, and the plaintiff's petition dismissed." The American Surety Company excepted.

The first four paragraphs of the petition as amended set out the parties to the case as above indicated. By paragraph, the remainder of the amended petition is substantially as follows: 5. Prior to January 10, 1936, W. M. Coney Company Inc. claimed that plaintiff was indebted to it; and on said date plaintiff and said company agreed to settle said claim for $1500, and plaintiff delivered to Robert N. Groover, president of said company, its draft for $1500 payable to W. M. Coney Company Inc. 6. On January 11, 1936, Mrs. Elizabeth L. Groover filed a petition in the superior court of Chatham County, Georgia, against W. M. Coney Company Inc. and Robert N. Groover, in which she prayed for the appointment of a temporary receiver. 7. On January 11, 1936, said court appointed Louis A. Brantley temporary receiver for all of the assets of W. M. Coney Company Inc., and on the same day said Brantley qualified as such receiver and gave bond with Firemen's Fund Indemnity Company as surety. 8. In all of said proceedings, and at all times herein mentioned, the law firm of Orrie E. Bright and Perry Brannen acted as attorneys for Mrs. Groover. 9. Said law firm, acting for Mrs. Groover and for said receiver, immediately telegraphed plaintiff, notifying it of the appointment of said receiver and requesting it not to honor said draft, and furnished plaintiff with a copy of the order appointing the receiver. Thereafter, on January 17, 1936, said law firm telegraphed plaintiff as follows: "On January fourteenth we mailed you certified copy receivership proceedings [against] W. M. Coney Company and Robert N. Groover. Please wire if you will refuse payment of draft for fifteen hundred dollars and deliver same to receiver or to Elizabeth L. Groover to whom all assets have been assigned." 10. "Having been induced to believe that . . Elizabeth L. Groover and . . said receiver were authorized to require . . petitioner to stop payment of the said draft and to issue a duplicate thereof . . . petitioner, on January 18, 1936, issued its duplicate draft payable to O. E. Bright and Perry Brannen, attorneys for receiver of W. M. Coney Company Inc., for $1500, which draft . . petitioner paid upon presentation thereof duly endorsed." . . 11. The proceeds of said draft went into the hands of said receiver. 12. During the latter part of January, 1936, Mrs. Elizabeth L. Groover and her husband. Robert N. Groover, decided to settle said receivership proceedings. Said proceedings were never served upon W. M. Coney Company Inc., or upon Robert N. Groover. Neither of said defendants ever entered an appearance. Mrs. Elizabeth L. Groover caused this court to pass an ex parte order disposing of said proceedings, and all funds in the hands of the receiver, including the proceeds of the said draft, were turned over to Mrs. Groover. The said settlement and disposition of the said cause were without the knowledge or consent of plaintiff. A complete copy of said receivership proceedings is hereunto attached and marked "exhibit C." 13. Thereafter W. M. Simmons sued plaintiff on said draft of January 10, 1936, "in the court of common pleas of Jasper County. South Carolina. . . A copy of the said suit and all proceedings connected therewith is hereto attached, and marked ``exhibit A.'" 14. That petitioner immediately vouched the said defendant to defend said suit, a copy of the said voucher being hereto attached, and marked "exhibit B." 15. Said W. M. Simmons obtained a final judgment against this petitioner in the said court of common pleas of South Carolina for $1580.25, which judgment petitioner paid in full. 16. Said proceedings in the superior court of Chatham County, Georgia, did not authorize the said defendants to stop payment upon said draft of January 10, 1936, and to accept a new draft in lieu thereof and W. M. Simmons was a bona fide purchaser before maturity of the said draft dated January 10, 1936, and was entitled to collect the same, as alleged in said South Carolina suit. 17. Robert N. Groover is not made a party to this cause, because he is a non-resident of Georgia and can not be served with this suit.

Paragraph 10 of the petition alleges generally that the second draft was issued because plaintiff was "induced to believe that . . said Elizabeth L. Groover and . . said receiver were authorized to require . . petitioner to stop payment of the said draft [of January 10, 1936] and to issue a duplicate therefor." The foregoing general averment is based on the allegations of fact that the attorneys, "acting for . . Mrs. Elizabeth L. Groover and . . said receiver, immediately telegraphed . . petitioner notifying it of the appointment of . . said receiver, and requesting it not to honor the said draft, and furnished . . petitioner with a copy of the order appointing the receiver," and thereafter, on January 17, 1936, telegraphed petitioner that they had mailed it a certified copy of the receivership proceedings, and requested it to "please wire if you will refuse payment of draft for fifteen hundred dollars and deliver same to receiver or to Elizabeth L. Groover to whom all assets have been assigned."

"It is an established rule of construction that conclusions based on specific allegations are to be disregarded where the particular facts alleged either contradict them or fail to support them." Green v.Spears, 181 Ga. 486, 490 (182 S.E. 913); Krueger v.MacDougald, 148 Ga. 429 (96 S.E. 867). In the instant case if the plaintiff had undertaken to do no more than was requested of it, to wit, "refuse payment of draft [of January 10, 1936] . . and deliver same to receiver or to Elizabeth L. Groover," the present case would never have been brought. Viewing the petition in this light, the facts alleged fail to support the above general conclusion reached in paragraph 10 thereof. Furthermore, so far as the petition discloses, the plaintiff, upon a mere request and without being impelled by any emergency or duress, and without further inquiry or investigation, issued the second draft, with knowledge that its proceeds would go into the hands of Mrs. Groover. It of course knew that there was then outstanding a negotiable draft given by it to cover the identical debt for which the second draft was given; and we think it is fair to conclude that it knew that the first draft would be collectible in the hands of "a bona fide purchaser before maturity," as the petition subsequently alleges it was. The statement in the telegram of January 17, 1936, that "all assets" had been assigned to Mrs. Groover apprised plaintiff of the fact that the proceeds of the second draft would be paid to her. Clearly the present action is not based on fraud. But even if we are in error in concluding that the averments of fact in the petition do not support the aforesaid general averments in paragraph 10 thereof, we are still of the opinion that the general demurrer was properly sustained; and we think that this view is supported by the following ruling in Arnold DuBose v. Georgia Railroad c. Co., 50 Ga. 304 (3): "If payment beyond the rate specified in the charter be made voluntarily by the shipper, through mere ignorance of the law, or paid ``where the facts are all known, and there is no misplaced confidence, and no artifice, or deception, or fraudulent practice is used by the other party,' an action will not lie to recover it back." The Code, § 20-1007, declares that such a voluntary payment "can not be recovered back, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filling a protest at the time of payment does not change the rule." The petition in the instant case does not allege that the payment sought to be recovered was made in ignorance of the law or of the facts. In our opinion the allegations of the petition set forth no cause of action and the action was properly dismissed on general demurrer. Conceding that the final decree in the receivership proceedings was invalid, for the reason that the court was without authority to enter it before the appearance term, the judgment dismissing the action on general demurrer should not be reversed, because a reversal would be fruitless, since the petition as amended, properly construed (most strongly against the plaintiff), showed that the plaintiff's voluntary payment could not be recovered; and the result would have been the same if the final decree in the receivership proceedings had been entered at the proper term of the court. See, in this connection, Eve v.Crowder, 59 Ga. 799; Kantzipper v. Kantzipper, 179 Ga. 850,852 (177 S.E. 679), and cit.

Judgment affirmed. MacIntyre and Gardner, JJ., concur.

ON REHEARING.