Arthur Murray, Inc. v. Smith
| Decision Date | 15 June 1971 |
| Docket Number | No. 46005,No. 3,46005,3 |
| Citation | 124 Ga.App. 51,183 S.E.2d 66 |
| Parties | ARTHUR MURRAY, INC. v. Dorothea H. SMITH et al |
| Court | Georgia Court of Appeals |
Corish, Smith, Remler & Moore, Albert N. Remler, Savannah, for appellant.
No appearance for appellees.
Syllabus Opinion by the Court
Dorothea H. Smith entered into certain contracts with Eck-Lan, Inc. for dancing lessons to be given her by its employees under the Arthur Murray system and plan. She took lessons, and after a time the contracts were extended for additional lessons, providing in each instance that she might give notice and withdraw from taking the lessons at any time. Certain payments were made. She now sues George Eck, individually, the corporation Eck-Lan, Inc., and Arthur Murray, Inc., charging that she was fraudulently induced to enter into the contracts, that they were negotiated to a bank, and that she has sought an adjustment of the contracts, which defendants refuse to make. She seeks damages, both actual and punitive. Defendants Eck and Eck-Lan, Inc. answered, denying any fraud, but admitting that plaintiff contracted with Eck-Lan, Inc. for the dancing lessons, and assert that she has received lessons for all payments made and that the company stands ready to give further lessons under the contract at any time, and that plaintiff has not given notice of intent to withdraw. Eck-Lan counterclaimed for the balance under the contract.
Arthur Murray, Inc. appeared specially and moved under Code Ann. § 81A-112(b) to dismiss as to it for the reasons that(a) it is a foreign corporation, doing no business in this State, and (b) no service has been perfected on it.
As to appellant there is an entry of service by the deputy sheriff: 'I have this day served the within suit on damages upon the defendant Arthur Murray, Inc. by handing a copy thereof to George Eck in person, he being Pres. of said business, in charge of its office at the time of service in Savannah, Chatham County, Georgia.'
An affidavit of George B. Theiss, President of Arthur Murray, Inc., was submitted, in which he asserted that the corporation was a Delaware corporation, qualified to do business only in Delaware, New York and Florida; that it did not own or lease any property in Georgia, had no bank account in Georgia, or other assets of any kind therein, and had no employees in Georgia. He asserted that George Eck, Jr. had conducted a dance studio in Savannah pursuant to a franchise agreement with Arthur Murray, Inc., but that Eck was not and had never been an agent in any capacity for Arthur Murray, Inc., and that Eck had supplied his own capital in establishing the studio, had hired all people in the operation thereof, and that he operated the studio as his independent business, paying Arthur Murray Inc. a royalty for the use of its name and method of instruction.
Plaintiff countered with an...
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...we find defendant's contentions that the Georgia company was a mere "licensee" equally unavailing. In Arthur Murray, Inc. v. Smith, 124 Ga.App. 51, 53, 183 S.E.2d 66 (1971), the Georgia Court of Appeals held that the mere payment of royalties by a franchisee or a licensee to the franchisor ......
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