1. The plaintiff seeks cancellation of his note to the bank, which was paid by the indorser, McAteer, and transferred to him by the bank. The plaintiff does not allege that he has paid or tendered to the defendant McAteer the amount of his note to the bank, plus interest, nor are any facts alleged to show that a tender, if made, would be refused by the defendant. "He who would have equity must do equity." Code, 37-104. Equity will not decree the cancellation of an instrument where anything of value has been received until repayment is either made or tendered, or the defendant has stated that, should a tender be made, it would be refused. Miller v. Cotten, 5 Ga. 341 (6); Petty v. Brunswick & Western Ry. Co., 109 Ga. 666 (5) (35 S. E. 82); Ansley v. Hightower, 120 Ga. 719 (4) (48 S. E. 197); Walker v. Walker, 139 Ga. 549 (7c) (77 S. E. 795); Peoples Bank v. Fidelity Loan & Trust Co., 155 Ga. 619 (5) (117 S. E. 747); Woodward v. LaPorte, 181 Ga. 732 (3) (184 S. E. 280); Pass v. Pass, 195 Ga. 155, 160 (23 S. E. 2d, 697).
2. Under the foregoing ruling, the plaintiff was not entitled to the relief of cancellation; and not being entitled to this relief, his petition failed to state a cause of action for any of the relief prayed. The court did not err in sustaining the general demurrers.
Lee R. Wilson filed a petition against T. P. McAteer and United Outdoor Advertising Company Inc., in substance alleging: The plaintiff borrowed $3000 from Fulton National Bank, and deposited as collateral 45 shares of the capital stock of the defendant corporation. At the bank's request he procured McAteer to indorse the note and to write the bank that, if the plaintiff failed to pay the note at maturity, he would pay it. The plaintiff deposited the 45 shares of stock "in blank." He defaulted in the payment of his note, and thereafter the bank transferred the note and stock to the defendant McAteer. The transfer of the note and stock to the defendant McAteer was without consideration. McAteer then had 90% of the capital stock of the defendant corporation, and voted the stock to discharge the plaintiff from the corporation and remove him as one of the directors. After all proper charges have been deducted, the corporation earned a net profit for the year 1948 of $3545.88. In equity and good conscience the plaintiff is entitled to 45% of the net earnings of the corporation. He has no adequate remedy at law. A fair valuation of the stock of the company should be ascertained, and the plaintiff be given the difference between his note of $3000 and the fair valuation of the 45 shares of capital stock, plus 45% of the net profits for 1948. Unless McAteer is restrained, the stock and note of $3000 will get into the hands of innocent. third persons. An auditor should be appointed to establish the fair and reasonable value of the 45 shares of capital stock, and the portion of undivided profits for the year 1948 due the plaintiff.
The prayers were: that an auditor be appointed; that the plaintiff recover the fair and reasonable valuation of the 45 shares of stock, less $3000, and interest on the note now in the possession of McAteer; that the note be delivered up and canceled; that the defendant corporation be required to pay 45% of its net profits to the plaintiff; that McAteer be restrained until the further order of the court from transferring, or in any manner encumbering, the note and the 45 shares of stock, which appear on the books of the corporation as the property of the plaintiff; for process; and for other relief.
The general demurrers of both defendants were sustained, and the exception is to that judgment.
Fine & Efurd, and Frank L. Conner, for defendants.