Butler v. Reisman , 70 Ga. App. 654 ( 1944 )

1. The petition set forth a cause of action on the theory of breach of contract, or for money had and received. The evidence was conflicting and authorized the finding that the petitioner was not a promoter of the proposed corporation, but advanced to the defendant $200, for which he was to receive stock in the corporation; that he did not consent to an expenditure of the money for a purpose other than the actual organization of the corporation; that the corporation was not organized; and that the $200 was not repaid to him. It was not error to overrule the motion for a new trial on the general grounds. 18 C. J. S. 537, § 136.

2. It was error to charge the jury that if they believed the plaintiff was entitled to recover, he would be entitled to recover the amount paid by him plus interest at the legal rate, which is eight per cent. per annum. Where the rate of interest is not provided by contract, it is seven per cent. per annum. Code, § 57-101.

3. The other parts of the charge excepted to were not erroneous for any reason assigned.

4. The judgment overruling the motion for a new trial is affirmed, with the direction that the excess of one per cent. interest be written off by the plaintiff before or at the time the judgment of this court is made the judgment of the court below; otherwise the judgment is reversed.

Judgment affirmed on condition. Sutton, P. J., and Parker, J., concur.

DECIDED FEBRUARY 19, 1944. STATEMENT OF FACTS BY FELTON, J. A. B. Reisman sued Luther S. Butler for $200, alleging substantially, that Butler approached him and represented that he and others had possession of a patentable idea for the manufacture of a certain type of toilet; that it was their intention to patent the idea and form a corporation for the manufacture of the product, and all that remained to be done before the formation of the corporation was the raising of certain funds, and that Butler would proceed immediately to take whatever steps were necessary; that acting on these representations, on or about April 16, 1939, petitioner advanced to defendant $200, it being further agreed by defendant that he was to proceed to form said corporation and issue petitioner stock certificates to cover all funds paid by petitioner; and that defendant had failed to form a corporation or make restitution to petitioner. The defendant denied the material allegations of the petition, and alleged that the money advanced by the petitioner was used by the defendant with the petitioner's knowledge for the purpose of financing a trip to California, and for financing the procuring of manufactured articles, contracts, and royalties, and that the man sent to California for the above purposes absconded. The jury found for the plaintiff $200 plus interest at 8 per cent., in the sum of $45.99. The defendant excepted to the overruling of his motion for a new trial.