Chappell v. F. A. D. Andrea Inc

• Court: Georgia Court of Appeals
• Writing for the Court: BLOODWORTH
• Citation: Chappell v. F. A. D. Andrea Inc, 153 S.E. 218, 41 Ga.App. 413 (Ga. App. 1930)
• Decision Date: 15 April 1930
• Docket Number: No. 20139.,20139.
• Parties: CHAPPELL. v. F. A. D. ANDREA, Inc.

41 Ga.App. 413

153 S.E. 218

CHAPPELL.

v.F. A. D. ANDREA, Inc.

No. 20139.

Court of Appeals of Georgia, Division No. 1.

April 15, 1930.

Rehearing Denied May 13, 1930.

Syllabus by the Court.

The trial court did not err either in its ruling on the demurrer or in directing a verdict for the plaintiff.

Additional Syllabus by Editorial Staff.

Error from City Court of Americus; W. M. Harper, Judge.

Suit by F. A. D. Andrea, Incorporated, against Allen Chappell, trading as the Chap-pell Machinery Company, in which defendant filed a cross-bill. Judgment for plaintiff, and defendant brings error.

Affirmed.

F. A. D. Andrea, Incorporated, brought suit against Allen Chappell, trading as Chappell Machinery Company, on an account. The defendant filed a plea and denied liability. He filed also a cross-bill claiming damages for the breach of an alleged contract entered into between him and the plaintiff. Plaintiff demurred to the cross-bill and to certain paragraphs of the answer. The demurrer was sustained as to the cross-bill, and as to some of the paragraphs of the answer. The defendant filed exceptions pendente lite to this order, which order is as follows: "Upon consideration of plaintiff's demurrer to the an swer and cross-action filed by defendant, it is considered, ordered, and adjudged that the grounds of demurrer taken to subparagraphs A, B, C, F, G, H, and M of the third paragraph of said answer are hereby sustained and accordingly that all allegations of said subparagraphs are hereby stricken; and further, that the grounds of the general demurrer to the cross-action filed by defendant, which cross-action is embodied in paragraphs 4, 5, and all subparagraphs under paragraph 5 of said cross-action, said subparagraphs being numbered 1 to 7 inclusive; and also subparagraphs under paragraph 5, lettered B, C, and D, be and the same are hereby sustained, and all allegations embodied in said cross-action and the cross-action itself are hereby dismissed; provided, however, that the defendant shall have twenty days from this date in which to amend, if any he has, so as to meet said points of demurrer." The plaintiff amended its petition and struck therefrom each item of the petition to which the court held that a good defense was alleged, and thereupon moved the direction of a verdict for the balance of the account, which was granted, and judgment was taken accordingly.

Hollis Fort, J. A. Hixon, and R. L. Maynard, all of Americus, for plaintiff in error.

Jones, Jones, Johnston & Russell, of Macon, for defendant in error.

BLOODWORTH, J. (after stating the foregoing facts).

The brief for the defendant in error is so thoroughly in accord with our views that we are incorporating much of it in this opinion. Did the court err in its ruling on the demurrer as complained of in the exceptions pendente lite? To determine this let us consider the pertinent portions of the contract alleged in the answer and the cross-bill to have been entered into and breached by the plaintiff. These are as follows: "1st: Said plaintiff did then and there agree with this defendant to furnish and sell him said radio sets, all fixtures and attachments thereto complete, at the list price, to be ordered out by defendant and paid for in the regular course of business, and as fast as sales could be made, and collections had by this defendant; said contract commencing from the date thereof, and to continue as long as there was a reasonable sale and demand for said radio sets. 3d: It was agreed between said plaintiff and this defendant that this defendant would follow the said plaintiff's plan of exploiting, advertising, introducing to the public, and selling said radio sets and appurtenances, which was by establishing dealers in the various localities of the territory assigned to defendant, and to give said dealers the exclusive right to sell in the particular territory out of the whole territory assigned defendant said radiosets, and all appliances and attachments thereto, and no other sales should be made in such territory of said radio sets and attachments, only by and through such dealers in such assigned territory. 4th: Said plaintiff did contract and agree with this defendant and did assign this defendant the whole of the State of Florida, except one county, to wit, Escambia county, as his exclusive territory in which to sell said goods under plaintiff's plan agreed upon as herein set out, and in which to establish the dealers by reassigning exclusive territories to such dealers to sell said radio sets and attachments; and that said plaintiff during the life of said contract was not to make any sales, through itself or otherwise, of said sets and attachments, other than through this defendant and his dealers so established in different sections of said State by him; that said territory, the whole of the State of Florida, except the county of Escambia, it was agreed should be thus assigned to as the exclusive territory of this defendant, and this defendant was not authorized and empowered to operate in any other territory, or to sell said goods through dealers or otherwise than in said State of Florida, with said exception aforesaid. 6th: That under said contract and agreement the said plaintiff at said time required of this defendant to move to the State of Florida, establish headquarters, and secure offices, storage rooms for said goods in the city of Jacksonville, said State, employ traveling salesmen, establish a distributing point, engage dealers in different localities, assign to them exclusive territories, contract with them for the exclusive sale of said goods in said territory, to demonstrate, through himself and his agents, said goods at every chance and opportunity, to advertise, exploit, and bring to the public mind the same, for the purpose of facilitating sales, to keep books at said distributing point whereby each and all of the sales and payments made thereof with each dealer, account of all goods received, and account of goods sent back for repairs, and account of all defective parts returned, etc., were to be kept; to employ experts to instruct dealers how to set up and operate said radio sets in each of the localities in which dealers were thus established; all of which was to be paid for by this defendant out of the discount aforesaid, allowed him under said contract."

Plaintiff's demurrer was based on three propositions, viz.: "1. That the contract is too indefinite in its terms to be capable of enforcement or to form the basis for computing damages. 2. That by reason of its indefiniteness as to time, it was terminable at the will of either party. 3. That there was no consideration flowing to the...