DeKalb County v. Georgia Paperstock Co.

• Decision Date: 21 May 1970
• Docket Number: No. 25684,25684
• Parties: DeKALB COUNTY v. GEORGIA PAPERSTOCK COMPANY, Inc. et al.
• Court: Georgia Supreme Court

Page 884

174 S.E.2d 884

226 Ga. 369

DeKALB COUNTY v. GEORGIA PAPERSTOCK COMPANY, Inc. et al.

No. 25684.

Supreme Court of Georgia.

May 21, 1970.

George P. Dillard, Herbert O. Edwards, Robert E. Mozley, Decatur, for appellant.

Samuel L. Eplan, Atlanta, James A. Mackay, Decatur, for appellees.

Syllabus Opinion by the Court

HAWES, Justice.

This case is before this court upon appeal from the order of the Judge of the Superior Court of DeKalb County overruling the defendant's motion to dismiss the plaintiff's complaint for failure to state a claim upon which relief can be granted; overruling the defendant's motion to strike paragraph 5 of the plaintiff's complaint; granting the plaintiff's motion to dismiss the defendant's cross action and third party complaint and dismissing the third party complaint as to Fireman's Fund Insurance Company; and from the judgment overruling the motion to dismiss the defendant's cross complaint and restraining the defendant from proceeding in its cross action in a prior case in Fulton Superior Court.

Georgia Paperstock Company, Inc., filed suit against DeKalb County seeking to recover damages for breach of a contract allegedly entered into between the plaintiff and the defendant wherein the plaintiff agreed to purchase from the county and the county agreed to sell to the plaintiff 'all of the waste paper corrugated boxes delivered in satisfactory condition for the use of the company at the plant of the company' to be located at a point convenient to the 'DeKalb County service area'. Under the contract the plaintiff agreed to pay to the defendant a stipulated price per net ton 'based on the Chicago marked on the 'high side," the price to be paid to be adjusted and determined on a quarterly basis, provided however, that in no event or regardless of the market price quotation, would the company pay to the county less than.$7.00 per net ton delivered, and further provided that the county would have 60 days from the beginning of the delivery of the material under the contract to build up the tonnage to the required minimum of 100 net tons per week, and thereafter 'in the event the county is unable to deliver the weekly minimum tonnage during any calendar month after this 60 day period, the price for that month shall be.$7.00 per net ton.' The county further agreed to deliver all the waste paper, cardboard corrugated boxes collected by the trucks of its sanitation department and 'if possible' those boxes collected by independent contractors or agents, such boxes to be free and clear of all garbage and trash or other material 'undesirable or unsuitable for use of the company.'

1. We first deal with the question of whether the complaint was subject to dismissal upon any of the grounds urged by the defendant in its motion to dismiss. In determining this question it must be kept in mind that under the Civil Practice Act (Ga.L.1966, p. 609 et seq.), as amended, a complaint is not subject to be dismissed upon motion unless the averments therein disclose with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim. Harper v. DeFreitas, 117 Ga.App. 236, 238, 160 S.E.2d 260. Furthermore, since, under the Civil Practice Act, issues are no longer formed by the pleadings, and pleadings serve only the purpose of giving notice to the opposite party of the general nature of the contentions of the pleader, it is no longer appropriate to construe the pleadings against the pleader, but they should be construed in the light most favorable to the pleader with all doubts resolved in the pleader's favor even though unfavorable constructions are possible. Ghitter v. Edge, 118 Ga.App. 750(1), 165 S.E.2d 598.

2. The motion to dismiss was based on the alleged invalidity of the contract sued on, and it may be conceded that since the basis of the plaintiff's claim is solely breach of the contract if the contract was invalid and unenforceable for any reason no claim would be stated on which relief could be granted. DeKalb County contends that the contract is contrary to public policy in that (1) it constitutes an unlawful restraint of trade; (2) creates a debt beyond a year without a vote of the people if the damages contended for by the plaintiff could be incurred; (3) unlawfully binds the commission and future commissions in the exercise of their legislative function; (4) is unilateral; (5) is vague and indefinite, and (6) is without consideration.

3. The obligation which the plaintiff seeks to impose upon the county is not a debt within the meaning of the constitutional provision relied upon. Such obligation, if it in fact exists, arises, not by reason of the obligations of the contract, but by the reason of its alleged breach. The contract itself, if performed by both the parties, would never result in the county incurring an obligation to pay to the plaintiff any sum whatsoever, but on the contrary would give rise to an obligation on the part of the plaintiff to pay the county money. If in fact the contract has been breached by the county in any respect and if it is liable, therefore, to the plaintiff for damages on account of such breach in any proper measure, those damages and the obligation of the county to pay them, are not an indebtedness within the meaning of that term as used in the Constitution. City of Conyers v. Kirk & Company, 78 Ga. 480(3), 3 S.E. 442; City Council of Dawson v. Dawson Water Works Company, 106 Ga. 696, 725(1), 32 S.E. 907. However, it is fundamental that the act of the county commissioners in granting to Georgia Paperstock Co., Inc., the right to receive waste corrugated boxes from the county and from private collectors of such, material collecting garbage under contract with the county is the exercise of a legislative function, and regardless of whether such a contract created a debt or not would not be binding on any subsequent board of county commissioners, and, therefore, would not be enforceable beyond the year in which it was made without the continued approval of such board of commissioners evidenced by a formal resolution passed by that body, or by the ratification of the contract evidenced by the board accepting the benefits thereof during such subsequent years. Cartersville Impprovement, Gas &c. Company v. Mayor &c. of Cartersville, 89 Ga. 683(1), 16 S.E. 25; City Council of Dawson v. Dawson Water Works Company, supra; McMaster v. Mayor and Council of Waynesboro, 122 Ga. 231, 234, 50 S.E. 122; Morton v. City of Waycross, 173 Ga. 298(2), 160 S.E. 330.

4. The contract does not violate the rule against the creation of monopolies or the granting of exclusive franchises as enunciated in cases such as the City of Atlanta v. Stein, 111 Ga. 789, 36 S.E. 932 and Macon Ambulance Service, Inc. v. Snow Properties, Inc., 218 Ga. 262, 265, 127 S.E.2d 598.

5. The contract is not unilateral or vague and indefinite or without consideration. It is fundamental that 'a promise...