53 S.E.2d 345 | Ga. | 1949
1. Article 4, section 4, paragraph 1 of the Constitution of 1945 is in substance the same as article 4, section 2, paragraph 4 of the Constitution of 1877, and its meaning is that fixed by construction by this court in State v. Central Railway Co.,
2. The restrictive clause in the contract of employment in the present case is supported by a sufficient consideration in the form of mutual promises and has been rendered definite by performance of the main contract, *289 and being reasonable as to time and area, is not void under the above-stated clause of the Constitution or section of the Code.
The prayers were for an injunction against Griffin during the period of one year from November 6, 1948, from soliciting, serving, or catering to any of the customers of the petitioner whom Griffin served during his employment with the petitioner; that Griffin be enjoined from being interested in or connected with any other person soliciting, serving, and catering to any of the petitioner's customers; that the defendant Kennedy be enjoined from aiding the defendant Griffin in violating his contract with the petitioner; and that the petitioner recover a judgment of $5000 and costs of this proceeding.
The exception here is to the judgment overruling the general demurrer filed by the defendant Griffin to the petition.
1. Article 4, section 4, paragraph 1 of the Constitution of 1945 is as follows: "All contracts and agreements which may have the effect, or be intended to have the effect, to defeat or lessen competition, or to encourage monopoly, shall be illegal and void. The General Assembly of this State shall have no power to authorize any such contract or agreement." With minor changes in sentence structure the quoted clause was taken from article 4, section 2, paragraph 4 of the Constitution of 1877, which was as follows: "The General Assembly of this State shall have no power to authorize any corporation to buy shares, or stock, in any other corporation in this State, or elsewhere, or to make any contract, or agreement whatever, with any such corporation, which may have the effect, or be intended to have the effect, to defeat or lessen competition, or to encourage monopoly; and all such contracts and agreements shall be illegal and void." If this clause of the Constitution is ambiguous, the construction placed thereon, while it was a part of the provisions of the Constitution of 1877, in State v. Central Railway Co.,
We have good authority for holding that in lifting this clause from the Constitution of 1877 there was no intention to cure some defect, remedy some evil, or in any manner change the existing law. See Minutes of Constitutional Commission, Vol. 1, p. 185. As ruled in State v. Central Railway Co., supra, where the language does not indicate an intention to declare some new principle, sound construction requires that it be construed to have intended no more than merely to state the law as it existed at the time. *294
What, then, is the meaning which we are required by law to give this clause of the Constitution by construction? Obviously it was intended to be in harmony with the existing right to contract which is guaranteed by the 14th amendment to the Federal Constitution. In West Coast Hotel Co. v. Parrish,
2. Having ruled in the preceding division of this opinion that the new Constitution in no wise changed the law with respect to contracts which are in restraint of trade or which defeat or *295 lessen competition, it remains only to test the contract here involved by the applicable rules of law long followed. Mutual obligations in a contract are sufficient consideration to sustain it. Code, § 20-304. Where, as here, there has been performance of a contract of employment, its performance is sufficient to make definite the compensation payable for the services rendered, although the contract itself was indefinite in this respect, and such performance is likewise a sufficient consideration to support the ancillary restrictive agreement here sued upon. Therefore, the contract is not subject to the attack made, that it was without consideration. While the recitals in the contract as to the nature of the employer's business and the necessity for protection against use by the employee, after the employment terminated, of knowledge gained of the said business must be supported by evidence upon the trial, yet when and if so supported it will show a case which would justify the restrictions provided in the contract. Then, since the restrictions are effective for a period of only one year, they are clearly reasonable as to time, and since they apply only to those portions of the three counties where the employer's business is operated, they are reasonable as to area, and, consequently, the contract in question is but an exercise of the right to contract and does not offend any law of this State. It follows that the petition alleged a cause of action, and the court did not err in overruling the defendant's general demurrer.
Judgment affirmed. All the Justices concur. Wyatt, J.,concurs in the judgment only.