111 Ga. 420 | Ga. | 1900
This case was before this court at the October term, 1898, and is reported in 107 Ga. 164. The contract upon which the plaintiff’s action wasbased isset forth fully in that volume; which renders it unnecessary to copy the same again in the report of the case now before us. After that decision, when the case came on again to be heard before the court below, a motion was made by defendant’s counsel orally to dismiss the petition (“ the Supreme Court of Georgia having held that said petition did not presentany grounds for equitable relief ”),on thegrounds, first, because there were no proper pleadings to support an action at law; second, because a legal cause of action is not set out. The court after argument took the motion under advisement, and on January 16, 1900, rendered judgment refusing
We call attention to that provision in the contract which is set forth in the petition to the following effect: “In case the South Carolina Company shall at any time fail to pay such sums of money as may be payable by it to the Augusta Company, when the same shall have become payable according to the terms hereof, and such default shall continue thirty days after written demand for payment of the same, or shall fail to perform any other covenant herein, and such default or failure to perform shall continue for thirty days after written notice requiring such performance, then and in every such case it shall be lawful for the Augusta Company, at its option, to re-enter into and upon its said line of railway and other property hereby leased, and every part thereof, and take possession thereof and have and hold such property, together with all additions and improvements which shall have been made to the same, and all the right, title, and interest whatsoever of the South Carolina Company in and to said property shall upon such reentry thereupon wholly cease and determine.” Among the charges in the petition it was alleged that the covenant under Article II of the contract was violated by the defendant, in that the rolling-stock and engines of the company had been allowed to get out of repair and run-down without renewing the same, and are in such condition that the business handled has to be done at greatly increased cost and risk to the company; and, in addition to this, good engines and coaches from the Augusta Southern have been taken and put on the main line of the South Carolina & Georgia Railroad and inferior engines and coaches substituted for them, which were unfit for hauling and handling the business of the Augusta Southern to advantage and with economy and safety, etc. The petition also alleges that the agreement under Article III of the contract has been violated, in that the defendant has failed to keep said accounts
There were a number of other breaches of the contract alleged against the defendant just as specifically as we have pointed out in the above cases; for instance, in charging a higher rate of interest than was agreed upon for carrying the floating indebtedness of plaintiff company, as provided for in Articles IV, V, VI, and VII of the contract; and by charging interest hot paid on bonds. And again, for violating the agreement in Article VIII to make fair and just division of freight and passenger rates; and also by violating a provision in the same article by charging expenses of agents working for both roads, and by allowing the plaintiff to have no voice in fixing insurance upon its property. Following the Article containing the above stipulation is the clause in the contract hereinabove quoted from Article X, which in effect stipulates that if the South Carolina Company shall fail to pay any sums of money that may be payable to the Augusta Company, or shall fail to perform any covenant therein, and such default or failure to perform shall continue for thirty days after written notice requiring such performance, then the South Carolina Company forfeits its rights under the lease, and
Judgment affirmed.