No. 10676 | Ga. | Nov 14, 1935
Lead Opinion
1. In view of the allegations in the answer as amended, as to the circumstances under which the transfer was signed, and that the contract qf assignment was ambiguous and was not intended by the parties to bind the defendant to refrain from engaging in the business of photography in Hall County for the period named in the original contract, the court erred in sustaining the demurrers to the paragraphs of the answer relating to the meaning of the transfer contract.
2. The court erred also in sustaining the demurrers to the paragraphs of the answer alleging want of consideration for the transfer.
3. The errors specified above rendered nugatory the subsequent proceedings in the case. Judgment reversed.
Concurrence Opinion
concurring specially. Construing the contract of assignment most strongly against the assignee, who prepared it, the contract does not bind the assignor not to engage in the business in question in Hall County for a period of ten years.
Concurrence Opinion
concurring specially. In tbe syllabus above, I bave endeavored to express tbe opinion of tbe majority of the court. Eor myself, I agree that tbe judgment should be reversed for tbe reason stated in tbe second paragraph, that the court erred in sustaining tbe demurrers to tbe parts of tbe answer alleging want of consideration for tbe transfer. However, I am of the opinion that the ruling of tbe Supreme Court when this case was formerly here (Ellison v. White, 178 Ga. 680, 173 S.E. 713" date_filed="1934-03-14" court="Ga." case_name="Ellison v. White">173 S. E. 713), was a bolding that tbe contract of assignment was unambiguous, and it thus became the law of this case. Unless tbe judge of tbe superior court held the contract of transfer to be unambiguous, be could not properly bave restrained or even temporarily enjoined the défendant from prosecuting the business upon which be entirely depended for a livelihood.