Brittain v. Reid

• Decision Date: 08 April 1965
• Docket Number: Nos. 22884,22892,s. 22884
• Citation: 141 S.E.2d 903,220 Ga. 794
• Parties: Lillie Mae BRITTAIN et al. v. Charlie REID. Charlie REID v. Lillie Mae BRITTAIN et al.
• Court: Georgia Supreme Court

Page 903

141 S.E.2d 903

220 Ga. 794

Lillie Mae BRITTAIN et al. v. Charlie REID.

Charlie REID v. Lillie Mae BRITTAIN et al.

Nos. 22884, 22892.

Supreme Court of Georgia.

April 8, 1965.

Syllabus by the Court

1. A contract for a valuable consideration wherein the seller of a business agrees not to compete with the purchaser, if reasonable as to territory, need not be limited as to time, in order to be a valid and binding contract.

2. The admissions of the defendants in their verified answers and the testimony upon the trial supported the verdict for the plaintiff; and the charge excepted to was authorized by the evidence.

3. Where lands are held by the United States Government for forts and arsenals, the public buildings erected thereon, together with the roads, streets, or other essential appurtenances, are free from such jurisdiction of the State as might impair effective use for the purpose intended.

On December 3, 1963, Charlie Reid filed his petition for equitable relief against Lillie Mae Brittain, doing business as Service Cab Company, and her husband, James E. Brittain. In substance the petition alleged: On December 6, 1961, James E. Brittain sold and conveyed to the plaintiff his taxicab businesses, known as Harlem and Packard Cab Companies, together with all equipment, permits, licenses, and good will. Paragraph 3 of the sales contract provided: 'Seller agrees that he will not go into the taxicab business either as a partner, owner, or operator of such a business, or that he will own or have any interest in or connection with any taxicab business within a radius of fifty (50) miles of the City of August, Georgia, within the next twenty-five (25) year period.' James E. Brittain has obtained a license to operate taxicabs for hire on the reservation of Fort Gordon, Georgia, and is now operating a cab there under the name of Service Cab Company. James E. Brittain is the true owner and operator of Service Cab Company. He has placed the registration of the business in his wife's name as a subterfuge to circumvent the provisions of his contract with the plaintiff. As a result of Brittain violating his contract, the plaintiff will be irreparably damaged, and he is now suffering daily financial loss. The plaintiff has no adequate remedy at law, and unless the defendants are enjoined from operating a taxicab business, the plaintiff will suffer complete financial ruin. The prayers were: for process; that the defendants be temporarily and permanently enjoined from operating or entering into the taxicab business within the radius and time provided by the contract; for damages; and for other relief.

The defendants filed separate answers. James E. Brittain admitted the sale to the plaintiff and the execution of the contract sued upon, but denied all other material allegations. He alleged: The defendant abided by his agreement with the plaintiff until April, 1963, when the plaintiff sold the defendant a taxicab, and the defendant, with the plaintiff's permission, re-entered the taxicab business and operated a taxicab for hire in conjunction with the Harlem Cab Company, and operated the taxicab for the plaintiff until September, 1963. The actions on the part of the plaintiff constituted a lawful breach of the agreement and the defendant is no longer bound thereby. The period of 25 years set forth in the agreement is unreasonable 'within the meaning of the law and that portion should be set aside.'

Lillie Mae Brittain admitted the execution of the contract. She denied the allegation that her husband had procured a license to operate cabs at Fort Gordon. She admitted that her husband was driving a cab under the name of Service Cab Company. She alleged that: She is the sole owner of Service Cab Company and operates solely on the military post under a license granted by authorities of Fort Gordon 'with the exception of trips initiating from said Post.' The plaintiff does not hold a license to operate at Fort Gordon, but operates in the City of Augusta. The defendant's business is not competitive with the business of the plaintiff, and she has caused him no damage.

On the interlocutory hearing an order was entered enjoining both the defendants as prayed. On the trial before a jury on the prayers for a permanent injunction a verdict was returned enjoining both defendants from operating, or being associated with, the taxicab business as provided in the sales agreement between Brittain and Reid. Judgment was entered enjoining the defendants as provided by the agreement, but it was further provided in the judgment: 'It appearing to the court that it is necessary to have a license or permit from the Commanding General of Fort Gordon, to enable a taxicab operator to do business at said post; it further appearing without dispute that on December 6, 1961, and at all times prior to and subsequent thereto, the plaintiff, Charlie Reid, did not have such a license or permit, and that the defendant does have such a permit, and therefore the operation of a taxi business solely on the post at Fort Gordon by the defendants would in no wise be competitive to Charlie Reid, the plaintiff, and would not be a violation of the contract between the plaintiff and the defendant and the prohibition of such operation is excluded from this permanent injunction. Such operation must be solely on the post to come within the terms of this exclusion and any operation on the public highways off the post within the 50-mile radius above referred to, even though the passenger may originate on the post would not be excluded from the terms of this permanent injunction.'

The defendants except to the judgments overruling their motion for judgment notwithstanding the verdict and their motion for new trial. By cross bill of exceptions the plaintiff excepts to so much of the judgment as excludes from the injunction granted the operation of a taxicab business by the defendants within the confines of Fort Gordon.

William C. Calhoun, Augusta, for plaintiff in error.

Cohen, Cohen & Slaton, James E. Slaton, Augusta, for defendant in error.

HEAD, Presiding Justice.

1. Where the owner of a business conveys it and the good will of the business by written contract for a valuable consideration and agrees not to compete with the purchaser, and the agreement is reasonably limited as to territory, it need not be limited as to time. In Goodman v. Henderson, 58 Ga. 567, 569, this court said: 'The principle seems to be, that the restraint of trade must be limited in territory, limitation in time not affecting the validity of the contract. It may be forever, and still good.' The rule stated in the Goodman case has always been the rule in Georgia. Holmes v. Martin, 10 Ga. 503; Seay v. Spratling, 133 Ga. 27, 29, 65 S.E. 137; Orkin Exterminating Co. Inc. of South Georgia v. Dewberry, 204 Ga. 794, 803, 51 S.E.2d 669; Wood v. McKinney, 205 Ga. 370, 53 S.E.2d 684. The contention of the defendants (plaintiffs in error in the main bill of exceptions) that the contract of Brittain not to re-enter the taxicab business for a period of...