Where the issues of a case are confined to a single question propounded to a jury and where there is some evidence to support the special verdict, the trial judge did not err in overruling the general grounds of the motion for new trial.

ARGUED JULY 9, 1963 — DECIDED SEPTEMBER 5, 1963 — REHEARING DENIED SEPTEMBER 18, 1963 AND OCTOBER 15, 1963.

Car-Perk Services, Inc. brought its action against James C. Carr in Fulton Superior Court seeking equitable relief. The petition as amended alleged that the defendant is a stockholder in the plaintiff corporation and was the president; that, while he was president, the corporation transferred certain assets to him, consisting of two businesses, Rainbow Laundry and City Linen Service; that these businesses included described physical assets, inventory of which was included as exhibits to the petition; that the transfers of the businesses and the assets were made for the sole purpose of enabling the defendant to hold and operate the businesses for the corporation and to obtain, upon his own signature and with the endorsements of the other stockholders, a bank loan giving as security a mortgage or bill of sale to secure debt on the businesses, which the businesses then required and which was to be repaid from their future earnings; that the bank loan was obtained as planned; that when the loan became due the defendant refinanced it on his own credit and now denies that he holds the assets for the corporation, but instead claims the businesses as his own.

It was further alleged that the businesses and assets have a value of not less than $250,000 and for the defendant, the former president, to claim ownership and exclusive beneficial interest under the circumstances alleged, when in fact he has none, constitutes a fraud on the plaintiff and entitles it to have the businesses impressed with a trust in favor of the plaintiff for the benefit of all its stockholders; that the plaintiff has no adequate remedy at law.

The prayers were for process; that the court decree the assets and businesses held by the defendant are impressed with a trust in favor of the plaintiff and that the court compel a reconveyance; that the court maintain the status quo by a temporary injunction; and for general relief.

The defendant answered denying all material allegations except those relating to jurisdiction, and demurred to the original petition. The defendant not renewing his demurrers to the amended petition, the trial judge subsequently entered an order dismissing the same.

The pre-trial order stipulated: "This is a suit by a corporation against its former president, contending that certain assets of the corporation (two businesses) were transferred to the president under an agreement whereby he was to obtain a loan for the benefit of the two businesses, to be repaid from the earnings of the two businesses, after which he was to return the two businesses to the corporation; plaintiff contends after having received the transfer from the corporation under such agreement he now claims to own the businesses individually and refuses to return them to the corporation. The suit seeks to impress the businesses with a trust and to compel the defendant to reconvey the property according to what the plaintiff claims was the original agreement."

Upon the trial of the case the following pertinent evidence was adduced.

The evidence concerning the background of the transaction in issue is undisputed. In 1951, H. A. Spencer, Sr., aided two of his employees, C. L. Perkins and James C. Carr, in obtaining a small laundry, Rainbow Laundry, to which business Perkins, Carr and H. A. Spencer, Jr., each contributed $3,000. A partnership, Car-Perk Services, was formed. From 1951 until 1954 they added, with the elder Spencer's financial aid, several other laundry businesses and City Linen Service. In April, 1954, they incorporated as Car-Perk Services, Inc., each of the three partners contributing one-third of the assets and each owning one-third of the stock. The linen business grew but was under capitalized and as a result incurred large debts for linen purchases. The debts rapidly mounted and the situation became acute. Spencer, Sr., and Carr, as president, began to look for a loan in order to meet the more pressing debts. They were unsuccessful until a mutual friend suggested that they might obtain a loan from the Citizens Southern National Bank. H. A. Spencer, Sr., carried on the bulk of the negotiations with the bank.

According to the testimony of the plaintiff's witnesses, Spencer Sr. decided that the bank would not loan its money to a corporation in such poor financial status but would loan to an individual with the others' endorsements. Spencer, Sr., therefore decided, despite Perkins' objections, that the corporation should transfer two businesses, Rainbow and City, to Carr and that he would obtain the loan. He told Carr and Perkins of this plan only shortly prior to the date of the loan, and informed Spencer, Jr., on the day the papers were to be drawn up.

At this time, so Perkins and Spencer, Sr., related, it was agreed that Carr would obtain the loan, hold the businesses for the corporation and then return them to the corporation. In order to balance the books and prevent the corporation from showing a loss, Carr was to sign a note to the corporation for $37,500.

Carr testified that there was absolutely no agreement that he reconvey the property; that the consideration of the sale to him was his assumption of the debts, agreement to pay them off and the note which he signed. He stated that he had left the note in the office where he signed it. Perkins testified that Carr took the note with him and later tore it up. Spencer, Sr. testified that Carr said he tore it up and both stated that Carr was not to pay it, and had not paid anything on it. Carr admitted he had "never paid a dime on it," but explained that Spencer told him to take care of the other debts first and that "it [the note] was originally set up on my books as owing." He also admitted that he had no prior knowledge of either the note or the details of the transfer of the businesses to him although "Spencer and C. L. Perkins and I did discuss about purchasing of the assets of City Linen Service and Rainbow Laundry . . . before the loan was consummated"; that "I did not offer to but City Linen Service or Rainbow Laundry. Mr. Spencer told me. I was leaving Mr. Spencer, anyway, so I had to land somewhere and I landed there." He confessed to being surprised and shocked at the note.

There was no dispute that a bill of sale to the businesses was executed with Car-Perk Services, Inc., the grantor, and Carr, the grantee; that the corporation minutes recited that the bill of sale was given in exchange for a note signed by Carr, payable to the corporation, in the sum of $37,500; that the bank loaned $50,000 to Carr as owner with the endorsements of Perkins and the Spencers, Jr. and Sr.; that this note was secured by a bill of sale to secure debt on the assets of the two businesses.

Perkins testified that subsequently the businesses operated as usual with no outward indicia of a separation; that they continued to swap parts, exchange machinery and have joint consultations regarding the affairs of the various businesses of Car-Perk Services, Inc.; that his first notice that Carr was claiming the businesses as his own was from rumors to that effect and the fact that Carr renewed the note in 1958 without their endorsements. Spencer testified that he had made statements as to Carr owning the businesses because Carr told him that he purchased them from Perkins in 1956. Carr testified that the businesses were his from August 12, 1955, the date of the sale. He stated that he had no share in Car-Perk Services, Inc., despite Perkins' testimony that Carr or his counsel took his shares of stock from the folder where all the shares were kept when they held a stockholders' meeting in 1958.

At the conclusion of the evidence the trial judge submitted to the jury without objection and with the consent of counsel for the plaintiff, the following single question: "Was the transfer of date August 12, 1955, from Car-Perk Services, Inc., to James C. Carr in transferring certain assets of Car-Perk Services, Inc., consisting of two businesses known as City Linen Service and Rainbow Laundry, executed and delivered under an agreement whereby James C. Carr was to obtain a loan for the benefit of the corporation, after which he was to return the two businesses to Car-Perk Services, Inc?"

To this question the jury returned a negative answer. In conformity with the verdict the trial judge rendered judgment for the defendant. To this judgment the plaintiff filed its motion for new trial on the general grounds, subsequently adding three special grounds by amendment.

Upon the denial of its amended motion for new trial the plaintiff brings its writ of error to this court. In the brief to this court counsel for the plaintiff expressly abandon two special grounds (grounds 4 and 5), leaving for consideration only the general grounds and the third special ground (ground 6) which is merely elaborative of the general grounds.

QUILLIAN, Justice.

Where issues of fact are submitted to a jury in the form of special verdict propounded by the trial judge as provided by Code § 37-1104, the sole question presented by the general grounds is whether there is some evidence to support the special verdict. Everette v. Mahaffey, 208 Ga. 775 (3) ( 69 S.E.2d 769). See Dozier v. McWhorter, 117 Ga. 786 (6) ( 45 S.E. 61); Fleming v. Collins, 190 Ga. 210 (4) ( 9 S.E.2d 157); Brown v. Brown, 192 Ga. 852 (3), 858 ( 16 S.E.2d 853). In the present case there was a conflict in the evidence as to whether there was an agreement for the defendant to hold the property for the corporation, obtain a loan and later reconvey it. The defendant denied such agreement, while the witnesses for the plaintiff maintained that there was such an agreement. Under such circumstances: "This court, being a court for the correction of errors of law, it is not the province or within the power of this court to grant a new trial and set aside a verdict of the jury, even though we should disagree with its application of the facts, where there is sufficient legal evidence to support the verdict and it has received the approval of the trial judge." Reed v. State, 195 Ga. 842 (7) ( 25 S.E.2d 692).

We have not overlooked the very able argument by counsel for the plaintiff that the defendant in endeavoring to show no agreement only succeeded in proving that there was no consideration for the transfer from the corporation to the defendant president. However, the jury was instructed in the trial judge's charge under the principle of law that only where there was no consideration for the transfer could it be shown that the transfer was for a particular purpose, to wit: under an arrangement whereby the defendant would subsequently reconvey the assets and the businesses in question. The trial judge framed the issue to the jury as follows: "If you believe, by a preponderance of the evidence, that at the time of the transfer of date, August 12th, 1955, from Car-Perk Services, Inc., to James C. Carr, in transferring certain assets of Car-Perk Services, Inc., consisting of two businesses known as City Linen Service and Rainbow Laundry, the transfer was executed and delivered under an agreement whereby James C. Carr was to obtain a loan for the benefit of the corporation, after which he was to return the two businesses to Car-Perk Services, Inc., then the plaintiff is entitled to recover in this case and you will find accordingly by answering in the affirmative, that is, by the use of the word, `yes,' the question to be submitted to you for your answer in this case . . . If you do not believe that the transfer was executed and delivered under an agreement whereby Carr was to obtain a loan for the benefit of the corporation, after which he was to return the two businesses to the corporation, then the plaintiff is not entitled to recover in this case and you will find accordingly by answering in the negative . . . the question to be submitted to you for your answer in this case."

The trial judge with the consent of the parties having instructed the jury that the determining issue of the case was whether there was an agreement for the defendant to return the assets to the corporation and there being some evidence that there was no such agreement, we can not hold that the verdict was not supported by sufficient evidence.

Judgment affirmed. All the Justices concur, except Duckworth, C. J., and Candler, J., who dissent.