30 Ga. App. 642 | Ga. Ct. App. | 1923
(After stating the foregoing facts.)
Without the slightest desire to bury the demurrers of the plaintiff in error, we think it unnecessary to set them forth in detail. The points which they raised may be sufficiently indicated by our rulings as announced in the headnotes.
The most important question involved is whether the agreement was void as against public policy. The principal Georgia case on this question seeixxs to be that of Graham v. Theis, 47 Ga. 479. There it appears that one person was induced, for a consideration, not to bid at an administrator’s sale, by another, who did bid and bought the property, both intending to bid but for the agreement. It was held that the agreement was illegal and unenforceable by the person who was induced not to bid, the Supreme Court saying : “ It amounts to a contract to commit a fraud upon the deceased’s estate, by stifling bids' at the sale.” The headnote is rather broad in the statement that “ a contract that one will not bid at an executor’s or administrator’s sale is illegal.” While the result of the contract in the instant case was that Padrick, though originally intending to bid upon the property, failed to do so, it does not appear that both he and the plaintiff in error would have been bidders but for the agreement. We think there is no presumption that the Kiser Company would or would not have
Of course, if the object of the agreement was to suppress and stifle fair competition and thereby to acquire the property for less than its value, it should not be enforced at the instance of either party; otherwise, as between the parties, if the agreement is the result of honest cooperation, though the actual consequence may have been to lessen competition, the principal question as between the parties being whether the intention was fraudulent or bona fide, to be determined by a jury under the evidence.
If it can reasonably be done, a contract will be construed as made for a legal rather than an illegal purpose, the more especially when a contract is attacked by a party thereto who has been benefitted thereby. See Robson v. Weil, supra.
Whether the contract pleaded is an illegal one must be determined by a jury under the evidence, having special reference to the intention with which it was made.
The court did not err in overruling the general demurrer, nor any of the special demurrers. We do not deem it profitable to add more to what is said in the headnotes.
Judgment affirmed.