Schoen v. Maryland Casualty Co.

The petition was deficient in stating an action for slander of title, and was properly dismissed on demurrer.

■ Equitable petition. Before Judge Pendleton. Eulton superior court. June 22, 1916. A. M. Schoen and others filed a petition alleging that the Maryland Casualty Company has instituted in the city court of Atlanta an action against them for a breach of contract, and that they have a cause of action arising ex delicto which they can not set off in the city court; for which reason the Maryland Casualty Company’s action should be enjoined, and it should be required in this proceeding to set up whatever claim it may have against petitioners, and that petitioners have judgment against it on its cross demand. Petitioners further alleged, in substance, that they leased from C. W. Hunnicutt, for a period of 99 years, certain real estate in the City of Atlanta. As a part of the lease and as a condition thereof was the following clause: “Parties of the second part are to herewith cause to be made, executed, and delivered, and continually kept of force, a good and sufficient bond or bonds in a solvent surety company or companies, in the sum of fifty thousand ($50,-000) dollars, payable to the party of the first part,, his heirs, executors, administrators, and assigns, conditioned upon the .faithful and prompt performance of each and every obligation, stipulation, and condition flowing from, or assumed by, parties of the second part." Petitioners agreed with the casualty company that it shoidd become their surety, and through its local agent and attorney it executed to Hunnicutt a contract of indemnification as provided for in the lease, and received from petitioners $40,000 worth of the capital stock of a bank in Macon, Ga., as collateral guaranty upon the indemnification contract. Petitioners assigned their lease to the Trust Company of the South, and accepted in payment for such transfer 800 shares of its stock. The Trust Company spent $15,000 in improving the property. The casualty company received premiums on the bond from petitioners and their assignee, and has never refunded them nor the collateral stock given. Notwithstanding it had “accepted the bond” and held the collateral thereon and accepted premiums therefor, almost from the beginning it has sought to repudiate the action of its agents in signing the bond to Hunnicutt, denied that the execution of the bond was the act of the company, and notified Hunnicutt that it was not liable upon the bond. It falsely represented to Hunnicutt that it had made no contract of indemnity, for the purpose of injuring petitioners in their relations with Hunnicutt, by bringing them into discredit and making Hunnicutt believe that petitioners had not in fact obtained the bond called for in the lease contract; the motive being to put petitioners in a false attitude before Hunnicutt by creating the impression that petitioners had misrepresented to him the facts concerning the bond. These slanderous misrepresentations created a doubt in the mind of Hunnicutt that the provision in the lease had been complied with, and Hunnicutt, in the belief that he had no bond, sued out a dispossessory warrant against the Trust Company of the South, on the ground that the taxes had remained unpaid for 90 days (the lease requiring payment of taxes within that time), although the real reason that Hunnicutt took this action was because of his belief that petitioners had failed to give the bond required by the lease. The defendant did not assist petitioners in this litigation, but secretly joined with Hunnicutt for a consideration, and procured a release from the terms of the bond. Hunnicutt also brought a receivership proceeding' against the Trust Company of the South. The result of these proceedings is that petitioners have lost the value of their stock in the Trust Company; wherefore they pray to recover damages. The petition was amended by alleging that taxes were paid before the expiration of ninety days, and petitioners were not in default; but that they were unable tp defend, because of their inability to give the bond required by law in such cases. The petition as amended was dismissed on general demurrer.