Broyles v. Johnson

Carlisle, Judge. It has been said many times by this court that the essential elements of an alleged cause of action are simply a duty and a breach of it. Bell v. Fitz, 84 Ga. App. 220, 223 (66 S. E. 2d 108). As against a general demurrer, allegations of facts from which the existence of a duty may be fairly inferred and showing a breach of it are sufficient. In the instant case, the existence of the duty is sufficiently shown by the allegations respecting the execution of the contract sued on together with the allegations showing performance on the part of the plaintiff in advancing money to the corporation thereunder. These allegations when considered with the other allegations of the petition to the effect that the defendant Johnson took over com [514] píete control of the corporation and thereafter failed and refused to repay to the plaintiff the sums advanced, are sufficient to show a violation of the contract which is the breach of duty sued upon, since under the ruling in Broyles v. Kirkwood Court Apts., 97 Ga. App. 384 (103 S. E. 2d 97), the obligation of this contract was the personal undertaking of the defendant, Johnson. Under the facts alleged in the petition in this case, it is controlled by the ruling in this court in the case of Niagara Sprayer & Chemical Co. v. Cotton States Fertilizer Co., 48 Ga. App. 779 (173 S. E. 460). In that case, the plaintiff and the defendant owned the entire stock in the corporation. In the present case, the plaintiff’s assignor and the defendant owned the entire stock in the corporation at the time the contract was signed. In that case, as well as in this case, the corporation was indebted to both parties. In both cases, the parties undertook to see that payment was made on such indebtednesses, in that case out of certain accounts, and, in this case, out of the first rentals from the apartment project. The allegations in the instant case show that the defendant had complete control of the corporation, its finances, books of account, and accounts receivable. The defendant undertook in the contract to see that the plaintiff’s assignor was paid out of the corporate funds for the money advanced by him. The petition alleged that the gross rentals collected were in fact sufficient to pay these sums. Whether or not the contract in this case be denominated one of guaranty or surety is immaterial and unnecessary for decision. On its face, it is an original undertaking on the part of the defendant, and under the allegations of the petition, the plaintiff, as assignee of the rights under the contract, is entitled to recover. Judgment reversed. Felton, C. J., Townsend and Nichols, JJ., concur. Gardner, P. J., and Quillian, J., dissent.