Smith v. Satilla Pecan Orchard & Stock Co. , 152 Ga. 538 ( 1922 )

Hill, J.

(After stating the foregoing facts.)

1. A demurrer to the petition was not filed, so far as the record discloses. Whether a court of equity has jurisdiction in this State to “ wind up ” and dissolve a corporation is not raised by the record. See, in this connection, Daniel v. Jones, 146 Ga. 583 (3), 594 (91 S. E. 665).

The petition alleges that the Satilla Pecan Orchard & Stock C-o. was chartered by the laws of the State, and that in pursuance of such charter the corporation was organized by accepting the charter and electing officers for the same. It is alleged that Moor was elected president, and Lawrence was elected secretary and treasurer of the corporation, and that these officers issued stock in the corporation, and the certificates of stock were signed by them as president and secretary and treasurer respectively. On the trial of the case the jury returned a verdict for the defendant. The plaintiff in error insists that the verdict was contrary to the evidence and without evidence to support it. The petition alleged, among other things, that the plaintiff loaned to Lawrence the sum of $500 and that $100 of the amount went into the corporation. This allegation of the petition is admitted by the answer of the defendant Moor, and the evidence of the plaintiff on the trial of the case was in substantial accord with the allegations in the petition in this regard. The defendant Moor did not testify, and offered no evidence to contradict the evidence as to the $100 being paid into the corporation. In view of the allegations contained in the petition, the answer of the defendant, and the evidence of the plaintiff, we are of the opinion that the verdict of the jury was not authorized by the evidence. Whether or not a court of'"equity can dissolve a corporation is not raised by the record; yet, under the allegations of the petition and the prayers thereof, including the one for general relief, we are of the opinion that the suit can be maintained for the purpose of preserving the property (which, there is evidence tending to show, went into the corporation) until other officers can be legally elected and qualified to conduct and manage the corporation as provided by law, it appearing from the petition and evidence in the case that the former officers have repudiated the corporation and are no longer acting as such. Daniel v. Jones, supra. The evidence is sufficient to authorize the conclusion that the charter was accepted, and that organization was effected under it. Where application is made for a charter in this State, and it is granted after having been applied for, acceptance of the charter may be presumed from such previous application. City of Atlanta v. Gate City Gas Light Co., 71 Ga. 106.

2. The first" ground of the amendment to the motion for new trial assigns error on the refusal of the court to allow the plaintiff to testify, in answer to the question as to what was done as to the charter of the Satilla Pecan Orchard & Stock Co. at the organization meeting, the following: “The charter was accepted,” on the ground that the answer was a mere conclusion of the witness. We are of the opinion that this answer of the witness should not have been excluded for the reason assigned. It was not a mere conclusion, but the statement of a fact. In this connection see City of Atlanta v. Gate City Gas Light Co., 71 Ga. 106. As the case is remanded for another hearing, on the ground that the verdict was not authorized by the evidence, a reversal of the judgment will not result upon this ground. There was other evidence in the case, to the effect that a paper was exhibited at the organization meeting of the corporation, which was the charter “ or was understood to be,” and that one of the defendants, Moor, was elected president of the corporation, and Lawrence, another defendant, was elected secretary and treasurer of the corporation. We are of the opinion that the evidence other than that excluded was sufficient to authorize the conclusion that the charter was accepted, and that there was an organization under the charter.

3. Error is assigned because the court, over objection of plaintiff, permitted the defendant to bring out the following evidence from the witness J. A. Smith, the plaintiff: “ I own a farm in Wilkinson County. I have a small farm in Tattnall. I hold stock in a bank. I was an officer of the Georgia Casualty Co. T was engaged in the mercantile business as an individual.” The geperal rule is that evidence of the wealth or worldly circumstances of a party is never admissible, unless in those exceptional cases where position or wealth is necessarily involved. 10 B. C. L. 957, § 130. We are of the opinion that this evidence was irrelevant and ought to have.been excluded.

4. On the trial of the case the court, over objection of the plaintiff that the evidence was irrelevant and immaterial and was offered to prejudice the jury, permitted the defendant to draw from the plaintiff, who was a witness in his own behalf, the following evidence : “ My first business experience with Mr. Lawrence was when I bought some stock in the Universal Ice Co. I bought the stock from Mr. Lawrence, I think, and Mr. Stewart. I don’t remember what year that was; and they undertook to sell that stock to me, and did sell some of it — I don’t remember how much. Afterwards Mr. Lawrence came to me and told me that he knew of a party .that had a good deal of stock for sale, and that if I would go in with him and buy it he would sell it and divide the proceeds with me. That was the only joint venture that we ever had. I do not know whether that was in 1912. I bought the stock, Mi. Lawrence and I bought jointly. It was 600 shares. I do not know as I know right now what I paid for it. I think it had a par value of $100 a share. It was an enterprise for making ice out of water without the distilling of it, is my recollection. It was not for the purpose of manufacturing ice machines, but for making ice. It made ice. I do not know how long it lasted. I went to the plant several times in Atlanta, and I saw them making it. I do not know whether it lasted a year or not. I do not know that it was a stock-selling proposition and not an investment proposition; it looked to me like a pretty good venture making ice. The par value was $100 a share. I paid my part, but do not know whether Mr. Lawrence paid his or not. I do not remember the price. That was the block of stock that Mr. Lawrence told me that he could buy and he and I go in together and he would sell it. It may have been that we paid $6000, or I paid my half of it, $3000 for my half of it. I gave my note for $2250, and those notes were paid; and I paid $750 before that. • There were 600 shares, Lawrence was to sell it for $50 a share, and his expenses to be deducted, and the profits to be divided. Before I found it out he sold nearly all of the stock, and I do not know what he did with the money.” This evidence was likewise irrelevant, as it involved transactions between the plaintiff and Lawrence, and it had no bearing on the present case; but we reverse the judgment on the ground of the insufficiency of the evidence to support the verdict, and not upon the ground of allowing irrelevant and immaterial evidence as set -out in this and the preceding ground of the motion for new trial.

5. The court, over the objection of the plaintiff that the evidence was immaterial and irrelevant and that its only purpose was to prejudice the jury, permitted the defendant to introduce certain documentary evidence, being certified copies of suits in Baldwin county between the plaintiff and the defendant Lawrence. We are of the- opinion that this evidence was admissible in view of the pleadings in the case relative to the question of the consideration which plaintiff alleges that he paid for the stock in the corporation, the averment being that there was no real consideration -moving from the plaintiff for the purchase of the stock.

6. The fourth special ground of the motion assigns error in the refusal by the court of a timely written request to charge the jury as follows: “ Allegations in the petition relating to a written instrument executed by a defendant, or to his actings and doings, are not, without some explanation of his alleged ignorance concerning the same, prouerlv met by a general averment that for want of sufficient infqrmation he is unable either to admit or deny the paragraphs of the petition in which such allegations are set forth.. In such a case the allegations will be taken to be admitted by the defendant.” This request was in the exact language of headnote 1 to the case of Angier v. Equitable B. & L. Assn., 109 Ga. 625 (35 S. E. 64); and while the request embodied a correct principle o^ law, yet the reference to “ a written instrument executed by a defendant ” made it improper to give the exact language as contained in the request. See Civil Code (1910), § 5637.

7. There is no merit in the contention that the assignment of error based upon the refusal of the trial court to give the charge did not show when the request was preferred. In this ground of the motion for new trial it is stated that “ the court refused the timely written request of the plaintiff to charge the jury as follows.” We think that this is a substantial compliance with the rule that it must appear when the request was preferred. If the request was “ a timely written request,” and this was certified by the court as being correct, then, properly construed, it means that the request was presented before the jury retired to consider their verdict. Civil Code (1910), § 6084.

Judgment reversed.

All the Justices concur.