Ansley v. Hightower , 120 Ga. 719 ( 1904 )

Simmons, C. J.

1. The allegations in the petition set forth a contract based upon a sufficient consideration, and a breach thereof by the defendant.

2. The petition also showed that the contract was with the defendant individually, and not with a partnership of which the defendant was a member.

3. Where a petition declares upon a contract, it is not necessary, even though such contract is within the statute of frauds, to allege that it was in writing. Upon demurrer it will be presumed that the contract was in writing, unless the pleadings show the contrary. Walker v. Edmundson, 111 Ga. 455; Taliaferro v. Smiley, 112 Ga. 62.

4. A tender of money is excused where, before the expiration of the time therefor, the party to whom it is to be made makes declarations equivalent to a refusal to accept the tender if made. Biggers v. Pace, 5 Ga. 171; Baynes v. Bernhard, 12 Ga. 150 ; Hunt v. Formby, 43 Ga. 79; 25 A. & E. Enc. L. 904. Judgment reversed.

All the Justices concur.

The defendant demurred to the petition generally, and as follows : It does not appear that the plaintiff ever tendered to the defendant the money contracted to be paid for the stock, nor is there any tender in the petition, nor is there anything stated that waived compliance with the contract in this matter. The contract for the purchase for the stock was without consideration, was a nudum pactum, and can not be • enforced. The alleged •contract was never consummated; it was for the sale of goods in excess of $50, and therefore should have been in writing. It does not appear- that the plaintiff has ever complied with the alleged contract. The petition shows no right of action against High-tower ; but if any right of action is shown, it is against the partnership of Hightower & Heath. It appears that Hightower has been released by the action of the plaintiff, by a settlement with one of the partners. The court sustained the demurrer, and the plaintiff excepted.

Shipp & Kline and S. A. Roddenbery, for plaintiff,

cited, as to tender: Ga. R. 5/172(3,4); 29/294(4); 46/278(2); 97/443, 445; 12 Am. D. 296; 6 Wis. 127, s. c. 70 Am. D. 453 (1). Consicleration: Civil Code, § 3657; Ga. R. 12/52-; 104/157 (1); 9 Cyc. 308, note 66. Contract to purchase shares in corporation need not be in writing: 105 Ga. 432 (2). Part performance took the contract out of the statute of frauds: Ga. R. 37/26; 38/232, 234; 42/207; 53/98 (2), 109; 90/416 (1),425. Demurrer not proper way to raise question as to statute. of frauds: Ga. R. 111/455, 457; 112/62 (3), 65.

Dessau, Harris & Harris and Pope S. Hill, for defendant.

The contract was with a partnership, and the partners should have been sued jointly: Civil Code, §§ 2635, 2638, 5009 ; 1 Lind. Part. *482; 2 Bates, Part. §§1049-50; 17 Md. 387; 60 111.454. Contract too indefinite: Civil Code, § 2693 ,(4). -The transactions covered too much time to ripen into such a contract: Civil Code, § 2693 (5). Contract was nudum pactum: 37 Ohio St. 339, s. c. 41 Am.. R. 507. Statute of. frauds applies to contract for shares in corporation: Pench’s Prec. in Ch. 533 ; Sel. Cas. Ck. (2d ed.) 113; 53 N. Y. 467; 15 Conn. 400,; 60 Me. 430; .2 Mo. App. 61; 3 Har. & J. (Md.) 38; 16 N. Y. W. Dig. 522; 38 Barb. 200; 158 N. Y. 617; 104 Fed. 219; 4 Fla. 359, 378; 72 N. Y. 595; 4 Rob. (N. Y.) 401; Reed on Stat. Fr. §234. Statute of frauds applies especially where neither stock nor corporation is in esse: 128 Mass. 388.