Black v. Horowitz

46 S.E.2d 346 | Ga. | 1948

1. Contracts in general restraint of trade are void. Code, § 20-504. A contract concerning a lawful and useful business in partial restraint of trade and reasonably limited as to time and territory is not void. Hood v. Legg, 160 Ga. 620, 627 (128 S.E. 891); Strauss v. Phillips, 180 Ga. 641 (180 S.E. 123); Kutash v. Gluckman, 193 Ga. 805 (20 S.E.2d 128).

2. The contract in this case, restricting the right of the defendant Sorrells to engage in the business of roasting and blending coffee, and reasonably limited in time to five years, and in territory to the "Greater Atlanta Area," is valid and enforceable.

3. Misjoinder of parties and causes of action can only be taken advantage of by special demurrer. Riley v. Royal Arcanum, 140 Ga. 178 (1-b) (78 S.E. 303); Butler v. McClure, 177 Ga. 552 (170 S.E. 678); Wilkinson v. Smith, 179 Ga. 507 (176 S.E. 373).

4. The trial court's rulings excepted to were limited to the general demurrers of the defendant, and argument by counsel for the plaintiff in error in his brief that there was a misjoinder of parties and actions presents no question for review by this court.

Judgment affirmed. All the Justices concur, except Bell, J., absent on account of illness, and Wyatt, J., who took no part in the consideration or decision of this case.

No. 16104. FEBRUARY 10, 1948. The petition of Maurice K. Horowitz against W. L. Sorrells and Atlanta Coffee Tea Company alleged: The petitioner is doing business as McDougall Coffee Company, and in August, 1947, he purchased from the defendant, W. L. Sorrells, and J. J. Wilbanks all assets of McDougall Coffee Company, including "any and all blends, formulae, or methods used or known in the roasting or blending of coffee by the sellers." A copy of the contract was attached to the petition as an exhibit, and under the contract it was stipulated: "It is further agreed and understood by the parties hereto that the sellers or members of said McDougall Coffee Company shall not engage in a like business in any manner whatsoever within the Greater Atlanta Area within a period of five (5) years from date hereof." The petitioner has performed his part of the agreement and paid the full consideration. Since October, 1947, Sorrells has been continuously employed by Atlanta Coffee Tea Company in the position as "Coffee Roaster and Grinder, Formula Blender and Formula Mixer." Atlanta Coffee Tea Company employed Sorrells with knowledge of the restrictive agreement between Sorrells and the petitioner, and "has aided and abetted and is continuing to aid and abet said defendant, W. L. Sorrells, to violate the terms of said contract." Notice was given to Sorrells and Atlanta Coffee Tea Company that Sorrells was violating his contract, and notwithstanding such notice, Sorrells has been continuously employed, and is presently employed, by Atlanta Coffee Tea Company. The petitioner will be irreparably damaged by the wrongful acts of the defendants, and his damage can not be computed in money. The petitioner has lost customers to Atlanta Coffee Tea Company because of the employment of Sorrells.

The prayers of the petition were: that Sorrells be temporarily and permanently enjoined and restrained, through August 27, 1952, from engaging in the coffee business within the Greater Atlanta Area; that Atlanta Coffee Tea Company be temporarily and permanently restrained and enjoined through August 27, 1952, from directly or indirectly aiding and abetting Sorrells to further violate his contract with the petitioner; and for other relief.

By amendment it was alleged that W. H. Black was the sole owner of Atlanta Coffee Tea Company, and therefore a party defendant in the action. Black and Sorrells demurred generally and specially to the petition. The general demurrers were overruled, and Sorrells was temporarily enjoined from being employed in any manner by Black, doing business as Atlanta Coffee Tea Company, or in any other coffee business within the greater Atlanta area. The order against Black, temporarily restraining his employment of Sorrells, was dissolved. The exception here is to the overruling of the general demurrers of Sorrells and Black.