Graham v. Cook, 347 S.E.2d 623 (Ga. Ct. App. 1986). · Go Syfert
Graham v. Cook, 347 S.E.2d 623 (Ga. Ct. App. 1986). Cases Citing This Book View Copy Cite
15 citation events (5 in the last 25 years) across 2 distinct courts.
Strongest positive: GRAND v. NACCHIO McMASTER And QWEST COMMUNICATIONS (arizctapp, 2006-12-15)
Top citers, strongest first. 8 distinct citers.
discussed Cited as authority (rule) GRAND v. NACCHIO McMASTER And QWEST COMMUNICATIONS
Ariz. Ct. App. · 2006 · confidence medium
For example, an inability to tender property does not prevent rescission “when the defendant is directly responsible for plaintiff’s inability to return the subject matter of the rescinded contract,” Jennings , 105 Ariz. at 172 , 461 P.2d at 166 , or when the subject matter of the contract is worthless, Graham v. Cook , 347 S.E.2d 623, 624 (Ga. Ct. App. 1986); see also In re Leary , 241 B.R. 266, 270 (D.
discussed Cited as authority (rule) Grand v. Nacchio
Ariz. Ct. App. · 2006 · confidence medium
For example, an inability to tender property does not prevent rescission “when the defendant is directly responsible for plaintiffs inability to return the subject matter of the rescinded contract,” Jennings, 105 Ariz. at 172 , 461 P.2d at 166 , or when the subject matter of the contract is worthless, Graham v. Cook, 179 Ga.App. 603 , 347 S.E.2d 623, 624 (1986); see also In re Leary, 241 B.R. 266, 270 (D.Mass.1999) (“[The tender] rule is subject to the exception that ... tender ... is not required if what was obtained was worthless.”). ¶ 65 Rescissory damages are intended to be the fi…
discussed Cited as authority (rule) Daly v. Mueller
Ga. Ct. App. · 2006 · confidence medium
Mikell and Adams, JJ., concur. 1 Leake v. Murphy, 274 Ga. App. 219, 220 ( 617 SE2d 575 ) (2005). 2 Graham v. Cook, 179 Ga. App. 603, 604 (1) ( 347 SE2d 623 ) (1986). 3 Wender & Roberts, Inc. v. Wender, 238 Ga. App. 355, 361 (5) ( 518 SE2d 154 ) (1999). 4 Mack v. Shearer, 222 Ga. 33, 34 ( 148 SE2d 314 ) (1966). 5 Harley v. Riverside Mills, 129 Ga. 214, 216-217 ( 58 SE 711 ) (1907). 6 Roberts v. Southern R.
discussed Cited as authority (rule) Sellers Bros., Inc. v. Imperial Flowers
Ga. Ct. App. · 1998 · confidence medium
“One may not void a contract on grounds of duress merely because he entered into it with reluctance, the contract is very disadvantageous to him, the bargaining power of the parties was unequal or there was some unfairness in the negotiations preceding the agreement.” (Punctuation omitted.) Graham v. Cook, 179 Ga. App. 603, 605 (2) ( 347 SE2d 623 ) (1986). 2.
discussed Cited as authority (rule) Morris v. Cowart
Ga. Ct. App. · 1991 · confidence medium
“In order to rescind a contract and sue for restitution, a plaintiff must first restore or make a bona fide effort to restore to the other party whatever benefits he has received from the transaction. [Cits.]” Graham v. Cook, 179 Ga. App. 603, 604 (1) ( 347 SE2d 623 ). “ Tf a party to a contract seeks to avoid it on the ground of fraud or mistake, he must, upon discovery of the facts, at once announce his purpose and adhere to it.
cited Cited as authority (rule) Twin Oaks Associates v. DeKalb Venture, Ltd.
Ga. Ct. App. · 1989 · confidence medium
See generally OCGA § 13-1-13; Graham v. Cook, 179 Ga. App. 603, 605 (3) ( 347 SE2d 623 ) (1986); Henson v. Columbus Bank & Trust Co., 144 Ga. App. 80, 82 (3) ( 240 SE2d 284 ) (1977).
discussed Cited as authority (rule) Leathers v. Robert Potamkin Cadillac Corp.
Ga. Ct. App. · 1987 · confidence medium
“In order to rescind a contract and sue for restitution, a plaintiff must first restore or make a bona fide effort to restore to the other party whatever benefits he has received from the transaction. [Cits.]” Graham v. Cook, 179 Ga. App. 603, 604 (1) ( 347 SE2d 623 ) (1986).
discussed Cited as authority (rule) Staley v. Southern Guaranty Investment Co.
Ga. Ct. App. · 1987 · confidence medium
OCGA § 13-5-6; Tidwell v. Critz, 248 Ga. 201, 203 ( 282 SE2d 104 ) (1981); Graham v. Cook, 179 Ga. App. 603, 604 (2) ( 347 SE2d 623 ) (1986); Cannon v. Kitchens, 240 Ga. 239, 240 ( 240 SE2d 78 ) (1977).
Graham
v.
Cook
72457.
Court of Appeals of Georgia.
Jun 20, 1986.
347 S.E.2d 623
John R. Calhoun, Walter W. Ballew III, for appellant., Joseph B. Bergen, for appellee.
Banke, Birdsong, Sognier.
Cited by 8 opinions  |  Published
Banke, Chief Judge.

Ellis P. Cook, the appellee herein, sued C. Carl Graham, the appellant, to recover the purchase price of certain shares of corporate stock he had purchased from Graham, alleging that the transaction was void due to fraud, duress, and inadequacy of consideration. We granted Graham’s application for an interlocutory appeal from the denial of his motion for summary judgment.

The salient facts are undisputed. Cook formed Southland Sound, Inc., in 1977 to engage in the business of selling and installing automobile radio and sound equipment. In 1979, he retained the services of Graham to do the firm’s bookkeeping. In order to provide the firm with additional capital, Graham and another of his clients, Richard Barrow, subsequently endorsed a corporate note for $50,000 in exchange for a one-third interest each in the company’s stock. Cook, however, retained 50 percent of the voting rights pursuant to a shareholders’ agreement.

Personal difficulties later developed between Cook and Barrow, with the result that Barrow sold his shares to Graham in exchange for $2,000 in cash plus Graham’s agreement to indemnify him against his obligation on the note. This sale, of course, made Graham the owner of two-thirds of the stock of the corporation, an arrangement which Cook found unacceptable. Cook and Graham therefore entered into a[*604] “Buy-Sell Agreement” giving Cook the option, for 30 days, of buying Graham’s stock in return for a $70,000 cash payment and an assumption of his obligation on the note. Graham, in turn, was given the option, at the end of the 30-day period, of buying out Cook for $35,000.

Cook exercised his option of buying out Graham, following which he brought the present action to recover the $70,000 payment he had made for Graham’s shares, plus attorney fees. Cook has declined, however, to tender the stock back to Graham, taking the position that there are “special circumstances” which excuse him from doing so — namely, the threat of Graham’s “eventual and imminent” seizure of the corporation. Held:

1. Cook is obviously not entitled both to retain the shares and to recover their purchase price. In order to rescind a contract and sue for restitution, a plaintiff must first restore or make a bona fide effort to restore to the other party whatever benefits he has received from the transaction. See generally OCGA § 13-4-60; Brown v. Techdata Corp., 238 Ga. 622, 626-627 (234 SE2d 787) (1977). This requirement is excused only under very narrowly defined circumstances — such as where the plaintiff is entitled to retain the benefits notwithstanding the rescission (see Sanders v. Looney, 247 Ga. 379; 381 (4) (276 SE2d 569) (1981)), or where the benefits received are worthless or illusory (see Thomson v. Walter, 160 Ga. App. 542, 544 (3) (287 SE2d 562) (1981)).

The record in this case negates any allegation that the shares are worthless, and we have been offered no other valid reason why Cook might be entitled to retain Graham’s shares without paying for them. Consequently, we hold that Graham was entitled to summary judgment on the rescission claim.

2. Moreover, the undisputed facts do not support Cook’s contention that he was induced by fraud or duress to purchase the shares. Fraud consists of a knowing misrepresentation or concealment of a material fact, done with the intention and purpose of deceiving (see OCGA § 51-6-2; Brown v. Ragsdale Motor Co.., 65 Ga. App. 727 (1, 3) (16 SE2d 176) (1941)). The record in this case is devoid of even the allegation that Graham was guilty of such: conduct in his dealings with Cook. . . '

The only duress alleged by Cook consisted of the threat of a corporate “takeover” by Graham, resulting'from Graham’s position as the company’s majority shareholder. The existence of such a threat was clearly insufficient to void the transaction. “ ‘Duress which will avoid a contract must consist of threats of bodily injury or other harm, or other means amounting to coercion, or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will.’ (Cit.)” Tidwell v. Critz;' 248 Ga. 201, 203 (282 SE2d 104)[*605] (1981). “One may ‘not void a contract on grounds of duress merely because he entered into it with reluctance, the contract is very disadvantageous to him, the bargaining power of the parties was unequal or there was some unfairness in the negotiations preceding the agreement.’ 17 CJS 944, § 168.” Id. at 204.

Decided June 20, 1986 Rehearing denied July 3, 1986 John R. Calhoun, Walter W. Ballew III, for appellant. Joseph B. Bergen, for appellee.

3. Similarly, the appellee’s $70,000 payment to Graham may not be considered “involuntary” so as to fall outside the ambit of OCGA § 13-1-13, merely because it was made under what Cook perceived to be the “urgent and immediate necessity” of preventing Graham’s “eventual and imminent seizure” of the corporation’s property. In the first place, the terms “eventual” and “imminent” are, as used in this context, totally contradictory. Secondly, the undisputed facts of record do not reflect the existence of a threat of seizure of any of the corporation’s property by Graham.

4. Finally, we reject the appellee’s allegation that the stock he received from Graham amounted to inadequate consideration for the $70,000 he paid for it. “[A]ny benefit accruing to the promisor, or any loss, trouble, or disadvantage undergone by the promisee” is sufficient consideration to support the enforcement of a contract. Vanguard Properties Dev. Corp. v. Murphy, 136 Ga. App. 519, 521 (221 SE2d 691) (1975). See also OCGA § 13-3-46. As indicated in Division 1 supra, Cook’s apparent contention that the stock was worthless is negated rather than supported by the facts of record.

5. For the foregoing reasons, we hold that the trial court erred in denying Graham’s motion for summary judgment.

Judgment reversed.

Birdsong, P. J., and Sognier, J., concur.