Bullock v. Johnson

Decision Date09 April 1900
PartiesBULLOCK v. JOHNSON.
CourtGeorgia Supreme Court

CONTRACT—REFORMATION—VALIDITY—RESTRAINT OF TRADE—ASSIGNMENT OF ERRORS.

1. The parties to a written contract have the power to reform it, so as to correct a mutual mistake in reference thereto, without any new consideration passing between them, whether the mistake was as to the legal effect of the writing as it originally stood, or was caused by the accidental omission of words which they intended it to contain.

2. Where one "carrying on the business of a produce dealer in the city of Macon, " and "running peddling wagons in said city and the suburbs thereof, " from which he sold produce, sold out the property employed by him in such business, and its good will, to another, and, in consideration of the purchase of the same by the latter, agreed and bound himself "not to enter into, or connect himself in any manner whatsoever in, the produce business in the county of Bibb for the period of five years from the date of this agreement, without the consent and knowledge of the [other] party, " the contract, as a restraint upon trade, was not, under the general provisions of the law, unreasonable, and a violation of its terms could be prevented by injunction, if necessary.

3. There is in the present bill of exceptions no assignment of error which presents for determination here the question whether or not the provisions of the act approved December 23, 1896, declaring unlawful certain "arrangements, contracts, agreements, trusts, " etc., would be applicable to a contract such as the one above indicated.

(Syllabus by the Court.)

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Suit by N. B. Johnson against W. B. Bullock. Judgment for plaintiff, and defendant brings error. Affirmed.

J. R. L. Smith, for plaintiff in error.

John L. Hardeman, for defendant in error.

FISH, J. Johnson brought his action in the superior court of Bibb county, in which he sought to enjoin Bullock "from carrying on the business of a produce dealer in any manner in the county of Bibb prior to the 7th day of March, 1903." His action was founded upon the following alleged written contract between the parties, which he averred that the defendant, without his consent, had repeatedly and continuously violated:

"State of Georgia, County of Bibb. Memorandum of agreement made and entered into tills, the 7th day of March, 1898, by and between W. B. Bullock, of the first part, and N. B. Johnson, of the second part, both in the city of Macon, Bibb county, Ga., witnesseth, that the party of the first part hereby agrees to sell to the party of the second part one (1) mule, one (1) horse, two (2) spring wagons, two (2) sets of single harness, and two sets of city peddler's license for the year 1898, and the good will of his produce business, which the said party of the first part is engaged in on Walnut street, between First and New streets, in the city of Macon, Bibb county, Georgia, for which the party of the first [?] part hereby agrees to pay to the said party of the first part the sum of one hundred and thirty-six dollars ($136.00) upon the signing of this agreement. In further consideration of the purchase of the above-named articles and business from the party of the first part by the party of the second part, the party of the first part hereby agrees and binds himself not to enter into, or connect himself in any manner whatsoever in, the produce business in the county of Bibb for the period of five years from the date of this agreement, without the consent and knowledge of the party of the second part. In witness whereof the parties hereto have signed this agreement in duplicate this, the day and year first above written. W. B. Bullock. [L. S.] N. B. Johnson.

[L. S.] Witness: F. C. Mosely. J. M. Wright.

"Macon, Ga., March 7th, 1898. Received of N. B. Johnson $136.00, in full payment of the above-named property. $136.00. W. B. Bullock."

Upon the trial of the case in the superior court, at the close of the plaintiff's testimony the defendant moved the court "to grant a nonsuit in said case, and to dismiss the same." This motion was overruled by the court. The jury returned a verdict finding for the plaintiff, and that 'the defendant be enjoined as prayed, a decree was entered accordingly, and the defendant excepted, assigning as error the overruling of his motion for a nonsuit. Having elected to rest his case upon the strength of his motion to nonsuit, the defendant must stand or fall upon the facts of the case as made by the plaintiff's evidence, and the admissions contained in the defendant's answer. It was alleged by the plaintiff and admitted by the defendant "that prior to the 7th day of March, 1808, " the defendant "was carrying on the business of a produce dealer in the city of Macon, " which business, according to the defendant's answer, "consisted entirely in running peddling wagons in said city and the suburbs thereof, from which [the] defendant peddled produce." On the above-mentioned date the written contract set up in the plaintiff's petition, minus the words "in the county of Bibb, " was executed by the parties. The plaintiff testified: "Mr. Bullock wrote the words 'in the county of Bibb' in the contract, the basis of this suit, in his own handwriting. Those words were not in the original contract as signed on March 7, 1898. They were inserted some time afterwards. I do not remember exactly how long afterwards, —a month or two, I think. I heard that Bullock was running a peddling wagon, from which he was peddling produce, and that he claimed there was some flaw by which he could get around the contract. I made inquiry, and was informed that the contract was not binding. I went to see Bullock, and asked him to insert the words 'in the county of Bibb' in the contract, and he did so. I did not pay him any money for inserting those words, nor did I give him any property or thing for doing so. Those words were inserted at his grocery store, on Cotton avenue, in Macon, Ga. I had the original contract prepared for Bullock to sign. Mr. Block wrote it for me. I presented it to Bullock for his signature when he came to deliver the property, and when I paid him the $130. My object in buying out Bullock was to get him out of the business, and out of competition with me. The understanding was that Bullock was not to engage in business further in Bibb county after this contract, unless by consent of Johnson. He said he expected to go to Savannah and engage in business. I am not in the produce business now. Have not been since about last January. I had to go out of the business because I could not compete with Bullock. I do not know anything of my own knowledge about Bullock having connected himself in any manner with the produce business since we made the contract. Question by the Court: Did you intend that those words, 'in the county of Bibb, ' should be in the contract when it was originally signed, or was that merely an afterthought? Answer. That was merely an afterthought. Question by Plaintiffs Counsel: You say your object in buying out Bullock was to get him out of competition? Answer. Yes, sir. Question. Then inserting those words was not an afterthought, was it? Answer. No sir." A witness named Bowman testified: "I worked for Mr. Bullock last year. I drove a peddling wagon for him, from which I peddled chickens, eggs, etc. That was some time about planting time." Another witness testified: "I bought some chickens from Mr. Bullock last year, some time during the summer, and he told me not to tell Mr. Johnson anything about it. I bought the chickens from his gro-cery store, on Cotton avenue, and I sold them at the market" The written contract as above set forth was introduced in evidence. The motion for a nonsuit attacked the contract, as originally executed, upon the ground that "it was in general restraint of trade, and therefore against public policy, " and alleged that "inasmuch as said contract was void, for the reason above stated, without the words 'in the county of Bibb' being therein, and inasmuch as there was no consideration for the making of a new contract by inserting said words in said original contract, said contract, with said words so inserted, was still void for want of consideration."

1. The contract, as originally executed, being unlimited as to territory in which Bullock was restrained from carrying on the produce business, was in general restraint of trade, and therefore void. But was the court, in the light of the plaintiff's testimony, bound, upon a motion for a nonsuit, to ignore the words "in the county of Bibb, " which appeared in the written instrument, and deal with it as if they were not there? If at the time the parties entered into the contract there was no intention to prohibit Bullock from carrying on the produce...

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