31 S.E.2d 651 | Ga. | 1944
A contract of employment containing restrictive provisions as to the right of the employee to work for a competitor of the employer in the territory within one year after termination of the employment, and requiring one week's notice before the employment can be terminated, is an entire contract and the whole contract must stand or fall together. If the employer discharges the employee in violation of the provision requiring one week's notice, he is not entitled, in equity, to enjoin the employee from working for a competitor.
It was alleged that the defendant worked for the plaintiff until on or about May 20, 1944, when he terminated the employment; that he was then employed by and is now working for Savannah Barber Beauty Supply Company in the capacity of soliciting purchases of beauty supplies of various categories and character for said company throughout the State of Georgia and other States; that the plaintiff had long been engaged in the beauty-supply business in the States of Georgia, Alabama, and Tennessee, and had built up an extensive business; that the defendant as an employee of a competitor of petitioner is soliciting, not only the general trade, but also the customers of the plaintiff; that the plaintiff is suffering and will suffer irreparable damages; that the defendant is financially unable to respond in damages. There was a prayer for an injunction and damages.
The defendant answered, admitting the execution of the contract, the termination of the employment thereunder, and his employment by a competitor; but he contended that his employment was terminated by the plaintiff without cause, and without giving to him the one week's notice provided in the contract. He further alleged that the purported contract was void, as being contrary to public policy, as an unlawful restraint of trade; void for uncertainty; void for want of consideration; and as lacking mutuality of consideration.
On the interlocutory hearing, the only conflict in the evidence *388 was upon the questions, whether the plaintiff or the defendant terminated the employment, and whether the one week's notice provided by the alleged contract was given. The evidence on these questions is not set forth because both the plaintiff in error and the defendant in error concede in their briefs that the evidence as to these matters was in sharp conflict.
The trial judge refused to enjoin the defendant, and the exception is to this judgment. The first question which we are called upon to decide in this case is whether or not the failure of the employer to give to the employee the one week's notice, provided for in the contract of employment, before terminating the contract, was such a breach of its terms as would preclude the employer from a right to enjoin the defendant's violation of the restrictive clauses in the contract. The evidence being in conflict on this question, the trial judge, under his discretion, was authorized to find that the employer terminated the contract without giving the one week's notice. The plaintiff in error contends in its brief: "The right of plaintiff to an injunction does not depend upon whether plaintiff or defendant terminated the employment, or upon whether, if the plaintiff terminated it, the defendant was given one week's notice of the termination." The Code, § 20-109, is as follows: "A contract may be absolute or conditional. In the former, every covenant is independent, and the breach of one does not relieve the obligation of another. In the latter, the covenants are dependent the one upon the other, and the breach of one is a release of the binding force of all dependent covenants. The classification of every contract must depend upon a rational interpretation of the intention of the parties." Section 20-112 reads as follows: "A contract may be either entire or severable. In the former, the whole contract stands or falls together. In the latter, the failure of a distinct part does not void the remainder. The character of the contract in such case is determined by the intention of the parties." Those sections are cited as authority for this position. We think that a mere reading of the contract in the instant case is sufficient to show that it was one contract and entire. *389 The restrictive clauses are certainly dependent upon the provision as to employment, and one cannot exist without the other. Therefore the contract is entire and the whole contract must stand or fall together.
It is further contended that the provision requiring one week's notice, on account of the short length of time involved, is not vital or important, and that its violation should not prevent the employer, by injunction, from enforcing the restrictive clauses of the contract. A sufficient answer to this position is that the employer, under the terms of the contract, could at the end of one day's work give to the employee the week's notice, and thereby terminate the employment in eight days from its beginning. Therefore by the terms of their agreement, the parties made one week and one day the period of time in which the contract could be terminated. The period of one week thus becomes relatively an important and vital period of time. The employer cannot in this manner make the one-week period vital as to himself and unimportant as to the employee.
We do not find any decisions of this court in which this identical question has been decided. We do find an English case, General Bill Posting Company Ltd. and Atkinson, respondent, reported in 1 British Ruling Cases, p. 497, decided in 1909, in which this language is used: "Employers agreed with their manager that he should hold office subject to termination at twelve months' notice by either party and with a restriction on his right to trade after its termination. The employers having wrongfully dismissed him without notice: Held, that he was entitled to treat the dismissal as a repudiation of the contract and to sue for damages for breach of contract, and was no longer bound by the restrictions on trade." It is true that the notice required in that case was twelve months and the notice required in the instant case is one week. This, however, in view of what has been said, would make no difference.
We hold the contract in the instant case to be entire, and the clause requiring one week's notice of intention to terminate the contract to be a vital clause of the contract, a breach of which on the part of the employer would relieve the defendant from the provisions of the restrictive clauses in the contract.
In passing upon the question now before the court, it becomes unnecessary to decide, under the above rulings, whether or not the *390 contract is subject to the other criticisms insisted upon. There was no error in refusing to enjoin the defendant.
Judgment affirmed. All the Justices concur.
