Dunn & McCarthy, Inc. v. Pinkston
| Docket Number | 22762. |
| Decision Date | 15 September 1933 |
| Citation | 170 S.E. 922,47 Ga.App. 514 |
| Parties | DUNN & McCARTHY, Inc., v. PINKSTON. |
| Court | Georgia Court of Appeals |
Rehearing Denied Sept. 30, 1933.
Syllabus by Editorial Staff.
Declaration in attachment filed in plaintiff's trade-name is not void because attachment itself was sued out in plaintiff's individual name.
Petition brought in trade-name of plaintiff is amendable to allege plaintiff's true name.
Retailer having exclusive handling of manufacturer's shoes within designated territory, held entitled to recover damages against manufacturer for breach of contract notwithstanding statute of frauds, where manufacturer without reasonable notice arbitrarily refused to make further sales to retailer, in view of universal custom requiring reasonable notice under such circumstances (Civ. Code 1910, §§ 1 (4), 3223).
Petition for breach of contract giving plaintiff, retailer, exclusive handling, within designated territory, of shoes manufactured by defendant, held not demurrable as stating mere conclusions.
Petition alleged a breach consisting in the arbitrary refusal of manufacturer, without fault of retailer, to make further sales of shoes to retailer, and the selection of another dealer within the territory, without giving to retailer reasonable notice of manufacturer's intention to thus terminate the exclusive sale contract with retailer, to the damage of retailer in the difference between the value of the stock of goods on hand and bought from manufacturer under the contract, before the alleged breach, and its value afterwards.
Person is not prevented from maintaining suit because doing business under trade-name without having filed required affidavit setting forth his full name, although such omission constitutes misdemeanor (Laws 1929, p. 233).
Recovery can be had for breach of contract, although contract does not expressly provide for such recovery.
In retailer's suit for breach of contract, giving him exclusive handling within designated territory of defendant manufacturer's shoes, based on manufacturer's arbitrary refusal, without reasonable notice to make further sales, court properly submitted retailer's right to recover damages sustained thereby, although contract contained no provision for reasonable notice.
Where custom that manufacturer give reasonable notice before terminating contract giving retailer exclusive handling of his goods within designated territory is not contradictory to contract terms and is so universal as to justify conclusion that it became by implication part of contract, it must be treated as part of contract.
In retailer's suit for breach of contract, whereby defendant manufacturer gave retailer exclusive right to handle manufacturer's shoes within designated territory, by arbitrarily refusing to make further sales to retailer without reasonable notice, instruction authorizing recovery of damages measured by difference in values of retailer's stock before and after breach held authorized.
Error from City Court of Americus; W. M. Harper, Judge.
Suit by J. A. Pinkston against Dunn & McCarthy, Inc. Judgment for plaintiff, and defendant brings error.
Affirmed.
R. L Maynard, of Americus, for plaintiff in error.
James A. Fort and John A. Fort, both of Americus, for defendant in error.
Syllabus OPINION.
1. A declaration in attachment filed in the trade-name of the plaintiff is not void as constituting no valid declaration because the attachment itself was sued out in the name of the individual trading under the alleged trade-name appearing in the declaration.
2. A petition brought in the trade-name of a plaintiff is amendable by an amendment alleging the true name of the plaintiff doing business under the alleged trade-name.
3. Where a manufacturer has from time to time sold and delivered the manufacturer's product in wholesale lots to one retail dealer only in a designated territory, under an agreement with the dealer to give him the exclusive handling of the manufacturer's product in that territory, and where the dealer specially advertises the goods and recommends them to the trade as the goods of the manufacturer, there arises a contract between the parties by which the manufacturer has given to the dealer, during the period within which they do business with each other, the exclusive handling of the manufacturer's goods of the character sold within the designated territory. Where there is a universal custom among the trade that where a manufacturer has given a retail dealer the exclusive...
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