Lane v. Lodge

Fisit, C. J. (After stating the foregoing facts.) 1. We will first deal with the cross-bill of exceptions, wherein error i's assigned upon the overruling of the demurrers to the petition. As to the general demurrer, the only points referred to by counsel for plaintiff in error in the cross-bill are: (a) that the petition as amended seeks to recover upon facts arising after the commencement of the suit; (&) that there was no consideration moving to the defendant to support the alleged contract for the breach of which the action was brought; (c) that there was no mutuality of contract. There is no merit in any of these points. The petition as finally amended, clearly sought to recover for the alleged breach of the contract of partnership between plaintiff and defendant, which breach, as appears from the petition, occurred prior to the filing of the suit. So much of the petition as referred to the operation of the turpentine business by Lodge after the institution of the suit was not for the purpose of recovering dam *98 ages for the turpentine, etc., which he took from the premises, but was set forth to show the inability of the defendant to specifically perform his contract. The petition shows that the contract between plaintiff and defendant to enter into a partnership was not without consideration. The alleged articles of agreement averred mutual and dependent covenants, which constituted a valuable consideration from each party to the other. Anderson v. Brown, 72 Ga. 713 (2a). See also Booth v. Saffold, 46 Ga. 278; Civil Code, § 4246. In Mann v. Bowen, 85 Ga. 616 (11 S. E. 862), it was said: “This was a parol contract to form a partnership in the future; and the law is well settled that where two persons enter into a contract to form a partnership, and one of them refuses to comply with his part of the contract, the other has a cause of action against him for the breach thereof. If it was a partnership already formed, we think it is equally well settled that if one of the parties refuses to permit the business to be launched, the other party has a cause of action.” One of the grounds of demurrer which was there held not good was that “the contract referred to was not to be performed within a year from the time of its making.” Many authorities were cited to sustain the principle announced. So in 30 Cye. 465, it is stated that an action at law will lie for the breach of an agreement to enter into a partnership, and also for the breach of individual stipulations between the partners, although these may be contained in the partnership articles, and in this country it will also lie for the wrongful ouster of a partner from the firm. Many cases are cited to sustain the text. It follows that the alleged contract was not without mutuality, and that an action would lie for its breach. 2 Paragraphs 4, 5, 6, 7, and 8 of the last amendment to the petition, which are quoted in the statement of facts preceding this opinion, were specially demurred to as alleging irrelevant matters, and because they set forth no cause of action against the defendant. The special demurrers to these paragraphs should have been sustained. Under the allegations of the petition as amended, the plaintiff sought to recover the difference between the contract price of the business and the property connected therewith—the subject-matter of the partnership agreement—and the market value thereof, if greater than the contract price at the time of the alleged *99 breach of the contract by the defendant. The allegations of the paragraphs in the amendment under consideration were therefore irrelevant. 3. Did the court err in granting a nonsuit? The evidence submitted in behalf of the plaintiff tended to prove all the material allegations of the petition as amended; and therefore the nonsuit should not have been granted. Counsel for Lodge, defendant in error in the main bill of exceptions, contend in their brief that the nonsuit was properly granted, for the following among other reasons: (a) Because “ . . one can not sue on one cause of action and recover on another cause of action. The petitioner alleged that it was agreed that Lodge should buy the property for nine thousand dollars for certain described items and pay seventy-five cents on the dollar for the laborers’ accounts, except one for which he should pay one hundred cents on the dollar, and should pay one hundred cents on the dollar for the stock of goods and all timber uncut. The plaintiff testified that: ‘For all timber we were to pay more than he gave for it; the exact amount I can’t say.’ It thus appears from the plaintiff’s evidence that the amount to be paid for the timber was not fixed by the parties. The price was left in the air, and no means was furnished by which the court could fix the price.” The point that plaintiff brought suit on one cause of action, and sought to recover on another, was not well taken. An action for specific performance may by amendment be changed into one to recover damages, when it appears that the specific performance is for any reason impossible. Civil Code, § 4639. Causey v. Causey, 106 Ga. 188, 193 (32 S. E. 138). There was evidence to show that the value of the uncut timber was to be ascertained after the contract of partnership was made, and McElvey testified in behalf of the plaintiff that the value of the uncut timber amounted to $610. He also testified as to the value of the commissary stock, which was ascertained by taking stock, and as to the amount of the laborers’ accounts, and that under his contract with Lodge the latter was to pay these in addition to the $9,000. (b) Because, “It was alleged that McElvey & Lodge contracted to sell to Lodge, and that it was understood between the parties that when the conveyance was made to Lodge, he was to make a conveyance to Lane for one half interest. The plaintiff’s evidence *100 shows that the conveyance was never made to Lodge, but that Mc-Elvey sold the business on Saturday to Dickerson and was paid for it by him, and that conveyance was never made to Lodge, that he was never in position to make a deed to Lane. It appears that if any wrong was done the plaintiff, it was clone by McElvey and not by Lodge.” Neither is there any merit in this point. McElvey testified: “I did not know anything about Mr. Dickerson coming-in the business until Saturday. I contracted with him on Saturday, and he paid me for it. I did not know anything until then about Lane going out and Dickerson coming in.” He further testified: “Mr. Lodge gave me a draft for the amount due on the following week, and I acknowledged the settlement by wire.” It was for the jury to pass on this testimony, and determine what weight and effect they should give it. Moreover, it could be legitimately inferred from the evidence in behalf of the plaintiff that if'no conveyance was ever made by McElvey to Lodge, it was because of the latter’s own acts in taking Dickerson into the partnership. (c) Because, “It was alleged that petitioner tendered the money agreed upon to Lodge and that Lodge declined to receive same. Plaintiff testified: ‘Under the contract I was to pay Mr. McElvey, and for tins reason I offered to pay Mr. McElvey instead of Lodge.’ ” As there was evidence tending to show that the defendant, Lodge, by taking Dickerson into the partnership and thereafter taking- from the premises large quantities of turpentine and selling the same, and by repudiating the alleged partnership agreement between himself and plaintiff, placed it beyond the power of defendant to comply with his covenants in such agreement. Lane, the plaintiff, was not, under the circumstances, bound to make any tender to Lodge, nor to McElvey, after the latter had conveyed the property to Lodge, nor to Lodge & Dickerson. (d) Because, “The alleged agreement was in parol and related to certain lands and for the purchase of goods to the amount of more than fifty dollars, and should therefore have been in writing-in order to be binding upon Lodge.” We can not agree to this coir tention. The contract between' the plaintiff and the defendant to enter into a-partnership for the purpose of operating a turpentine business and to purchase such a business from McElvey & Lodge or McElvey’s interest in such business (although the business to be purchased consisted in part of certain leases of lands for turpentine *101 purposes and o£ personalty connected with the business of the value of more than $50) did not fall within the statute of frauds, and was not required to be in writing. The part of the partnership agreement as to the purchase of the turpentine business was but an incident of the contract of partnership. It provided for the •subject-matter and manner of investment of the capital of the firm. It was merely an agreement that the partnership would buy such business. It was nothing more than an agreement that the partnership should buy an interest in lands and personalty of another, which should be held as partnership property. Pennypacker v. Leary, 65 Iowa, 220 (21 N. W. 575); Falkner v. Hunt, 73 N. C. 571; Connell v. Mulligan, 21 Miss. 388; Davenport v. Buchanan, 6 S. D. 376 (61 N. W. 47); Fountain v. Menard, 53 Minn. 443 (55 N. W. 601, 39 Am. St. R. 617); Wood on Statute of Frauds, § 233; Browne on Statute of Frauds, § 262; Mann v. Bowen, 85 Ga. 616 (11 S. E. 862). Nor was the plaintiff, under the facts of the ease, bound to offer to the defendant a conveyance to be executed by the latter to the former and to pay the cost of such conveyance; nor did the evidence show that the contract of partnership was entered into on Sunday. It follows from what has been said, that the judgment on the main bill, as well as that on the cross-bill of exceptions, must be Reversed. All the Justices concur.