Broyles v. Johnson

Gardner, Presiding Judge,

dissenting. It is to be kept in mind in determining the issues herein involved that this is not a suit ex delicto- by the plaintiff, Jack Broyles, as assignee of said Walton for damages claimed as the result of the wrongful conduct of the defendant Johnson relative to said corporation or to- the expulsion of Walton therefrom or the “kicking” him out of the same, but this is an action ex contractu for money claimed due to Walton by Johnson, as an individual, and which debts were assigned by Walton to the plaintiff, and it affirmatively appears there was no such ex contractu debtor.

It plainly appears from the allegations of the petition, as twice amended, that the alleged indebtedness, if any, is on the part of the said Kirkwood Courts Apartments, Inc., in favor of Walton, and not by Johnson individually. The present suit is by Broyles as assignee of said Walton, against Johnson as an individual, purporting to be for money due by Johnson to Walton for breach of a contract, and on the petition, as amended, shows that the indebtedness, if any, arises out of money advanced to and for the benefit of said corporation, and not to Johnson. It is my opinion that the court properly ruled that there was no cause of action alleged in favor of Broyles against Johnson, the individual.

I do not think that the case of Niagara Sprayer & Chemical Co. v. Cotton States Fertilizer Co., 48 Ga. App. 779 (173 S. E. 460), is in the least applicable here. The plaintiff here is the assignee of a lawsuit in tort and not of any actual ex contractu indebtedness in favor of Walton against Johnson. This liability, if any, would be by the corporation in favor of Broyles, the assignor.

I think it follows that the trial judge did not err in sustaining the general demurrers, as renewed, to the plaintiff’s petition, as amended, the same being excepted to by direct bill of exceptions to this court.

I am authorized to state that Quillian, Judge, concurs in this dissent.