Carusos v. Briarcliff Inc

• Decision Date: 29 October 1947
• Docket Number: No. 31680.,31680.
• Citation: 45 S.E.2d 802
• Parties: CARUSOS et al. v. BRIARCLIFF, Inc., et al.
• Court: Georgia Court of Appeals

45 S.E.2d 802

CARUSOS et al.

v.BRIARCLIFF, Inc., et al.

No. 31680.

Court of Appeals of Georgia,

Division No. 2.

Oct. 29, 1947.

Judgment Adhered to Dec. 18, 1947.

Syllabus by the Court.

1. A petition by which an action for breach of contract is commenced, brought against two defendant corporations charging conspiracy between them resulting in breach of contract by them, snowing on its face that one of said corporations was created after the alleged breach of contract, is subject to general demurrer interposed by the corporation created after the alleged breach of contract.

2. The measure of damages recoverable for a lessor's breach of covenant not to rent other stipulated premises for a competing business is the difference in value between the plaintiffs' leasehold with the covenant against competition unbroken and the same leasehold with covenant broken. The value of said leasehold is not controlled by the stipulated rental therefor, nor the profits which the tenant could have realized from the operation of his business without the adjacent competing business. However allegations and evidence of loss of profits are material to show the damage sustained by the lessee in accordance with the rule herein stated. See 32 Am.Jur. 163. Sturgis & Berry v. Frost, 56 Ga. 188, 189-(5). Juchter v. Boehm, etc., 67 Ga. 534, 535-(5). Parker v. Levin, 285 Mass. 125, 188 N.E. 502, 90 A.L.R. 1446. Hayes v. Atlanta, 1 Ga.App. 25, 26-(6), 57 S.E. 1087.

3. Special demurrer goes to the structure merely, not to the substance; it must distinctly and particularly specify wherein the defect lies, and the party thus demurring is obliged to lay his finger on the very point contended to be defective. See Martin v. Bartow Iron Works, 35 Ga. 320, 323; Douglas, Augusta & Gulf R. Co. v. Swindle, 2 Ga.App. 550, 59 S.E. 600.

4. A petition alleging a contract, a breach thereof, and resultant damages, proof of which would entitle the plaintiff to recover some amount, is not subject to general demurrer. See Cothran v. Witham, 123 Ga. 190, 51 S.E. 285; Crane v. Massey, 181 Ga. 482, 183 S.E. 59.

Error from Superior Court, Fulton County; Walter C. Hendrix, Judge.

Action for breach of contract by Mrs. Mary Carusos and Nick Carusos against Briarcliff, Inc., and Briarcliff Plaza, Inc., to review the judgment, the plaintiffs bring error.

Affirmed as to Briarcliff Plaza, Inc., and reversed as to Briarcliff, Inc.

On June 11, 1946, Mrs. Mary Carusos and Nick Carusos, plaintiffs (now plaintiffs in error) in this court, filed their petition for breach of contract against Briarcliff, Inc., and Briarcliff Plaza, Inc. Omitting formal parts, the petition alleged that on October 9, 1939, Nanasa Investment Company entered into a lease agreement with petitioners for the lease of certain store properties in Briarcliff Plaza for a period of fifteen years, a copy of said lease contract being attached to said petition. That paragraph 30 of said contract provided: "Lessor agrees not to lease another store for the purpose of dry cleaning or pressing where such work is to be done in any of the premises at Briarcliff Plaza." That petitioners under said lease agreement entered into possession of the premises and established a lucrative business. That on or about December 30, 1942, Nanasa Investment Company consolidated with other named corporations under the name of "Briarcliff, Inc., " and by reason of such consolidation, the defendant, Briarcliff, Inc., became the owner of the leased premises and the lease contract and received the monthly rental provided therein. That on or about November 24, 1944, Briarcliff, Inc., entered into a lease agreement with one E. J. Matthews for a store in Briarcliff Plaza for a period of two years, with the right of renewal, and provided in said lease that the property would be used as a dry cleaning business and laundry pick up. The latter lease was in violation of the terms and conditions of the plaintiffs' lease as hereinbefore set forth.

That as a result of the breach of plaintiffs' contract by Briarcliff, Inc., Matthews opened a new dry cleaning business in the most desirable location on Briarcliff Plaza and was soon taking most of plaintiffs' customers and business away and left plaintiffs with only a small part of the business they had for five years labored and expended a large sum of money to establish. That the newly established business was an immediate success to the extent of getting business amounting to the sum of $3,000 per month, or more, all of which was taken from plaintiffs' business and was the business and income which was contemplated and anticipated by the parties to the original lease contract made with plaintiffs and which the Lessor knew would be the result. That by reason of the breach of contract, the amount of business taken from the petitioners, reduced to the present value, during the remaining term of the lease, of $242,954.31, for which petitioners allege they are entitled to recover against the defendant by reason of the breach of their contract.

The petition further alleged that on January 16, 1945, a new corporation, known as Briarcliff Plaza, Inc., was chartered; that on January 20, 1945, Briarcliff, Inc., made and delivered its deed conveying the Briarcliff Plaza property to Briarcliff Plaza, Inc., for consideration expressed in the deed and the assumption by the new company of a large outstanding indebtedness. The petition also recited other facts and acts between the named defendant corporations, attempting to show a conspiracy to breach the contract set forth in the petition.

Each of the named defendants employed its separate attorneys and each filed separate demurrers to the petition, consisting of both special and general grounds.

The setting forth of the detailed grounds of the special demurrer of the defendant Briarcliff Plaza, Inc., is deemed unnecessary to this decision. The defendant Briarcliff, Inc., demurred by special ground 1 to that part of paragraph 11 of the petition as follows: "each of which helped to support the others (different branches of the business operated by plaintiffs on leased premises) by bringing business of like kind to each department, (a) by the customers for dry cleaning and pressing getting shoe shines or repair job done, or (b) getting a hat cleaning job done, so that customer could get all desired work done at the one place; that the petitioners immediately began the task of building up and establishing the business contemplated and which was known and understood by the owner of the property, and evidenced by the lease contract, which granted to petitioners the exclusive rights therein stipulated" on the grounds that (a) said allegations are im-material and irrelevant to any cause of action that the plaintiffs might have; (b) said allegations are not germane to any cause of action set forth in said petitions; (c) said allegations are prejudicial in that they attempt to attract the sympathy of the jury to the plaintiffs and to inflame the jury against the defendant; (d) said allegations attempt to lay the basis for a measure of damages that is not the true legal measure of damages for any cause of action set forth in the petition. Special grounds 2, 3, 5, 6, 7, 8,. 9, and 17 of the demurrer to the whole of paragraphs 12, 13, 16, 17, 21, 22, 23 and 32 are the same as the sub-grounds to part of paragraph 11 as herein set forth. Grounds 10, 11, 12, 13, 14, 15 and 16 of the special demurrer of said defendant interposed to paragraphs 24, 25, 26, 27, 28, 30 and 31 of the petition contain the same sub-grounds as hereinbefore set forth with the additional ground that (e) The allegations of said paragraph constitute mere conclusions of the pleader, and which are not in any way sustained by any facts set forth in the petition. Grounds 18, 19, and 20 interposed to the whole of paragraphs 33, 34 and 35 of the petition contain the same sub-grounds designated as (a), (b), (c), (d) and (e) hereinbefore set forth with the additional sub-ground that (f) The damages sought to be recovered by the allegations are too remote and speculative to be the basis of a legal recovery in favor of the plaintiffs and against this defendant. Special ground 4 of the special demurrer of said defendant is interposed to the whole of paragraph 14 of plaintiffs' petition for the reason that the allegations thereof are redundant and repetitious of the allegations set forth in paragraph 4 of the plaintiffs' petition. Special grounds 21 and 22 of said special demurrer are interposed to paragraphs (b) and (c) of the prayer of the plaintiffs' petition, said prayers of said petition calling for the production of certain records of transactions between the defendants Briarcliff Plaza and Briarcliff, Inc., and said demurrer being based upon the grounds of irrelevancy and prejudice to the defendants in the eyes of the jury. Grounds 23 and 24 of the demurrer to the whole petition on the grounds that the petition fails to allege the proper measure of damages, and that the items sought to be recovered as damages are too remote and speculative to be the basis of any legal recovery in favor of the plaintiffs and against the defendant were not passed upon by the trial court. Upon the hearing of said demurrers the trial court sustained the general demurrer interposed on behalf of the defendant Briarcliff Plaza, Inc., and dismissed the petition as to it. This judgment is assigned as error on behalf of the plaintiffs. With reference to the demurrers of the defendant Briarcliff, Inc., the trial court entered his order as follows: "The above and foregoing demurrer coming on to be heard, and after hearing argument, it is considered, ordered, and adjudged by the court that all the grounds and sub-grounds set out in paragraphs 1 to 22 inclusive should be, and they are, hereby sustained, and the paragraphs of the petition and the language of the petition referred to are stricken from the petition. The above grounds of demurrer...