Holloway v. Brown

• Decision Date: 14 November 1930
• Docket Number: 7942.
• Citation: 155 S.E. 917,171 Ga. 481
• Parties: HOLLOWAY v. BROWN.
• Court: Georgia Supreme Court

155 S.E. 917

171 Ga. 481

HOLLOWAY v. BROWN.

No. 7942.

Supreme Court of Georgia

November 14, 1930

Syllabus by the Court.

The exception is to a judgment denying a new trial.None of the grounds of the motion show error, and therefore the judgment of the court was not erroneous.

Additional Syllabus by Editorial Staff.

Contract prohibiting seller of restaurant from operating restaurant in same town while purchaser operates restaurant personally held valid.

Seller of restaurant prohibited from operating restaurant while purchaser operated restaurant personally could not operate though purchaser temporarily suspended operation.

In absence of fraud, accident, or mistake, parol evidence is inadmissible to vary unambiguous written contract (Civ. Code 1910, § § 4267, 4268, subsec.4).

Code providing that meaning placed on contract by one party, known by other, shall be true meaning, held inapplicable unless contract is ambiguous (Civ. Code 1910, § 4267).

Contract for sale of restaurant, if doubtful, would be construed most strongly against seller obligated not to engage in restaurant business while purchaser operated restaurant (Civ. Code 1910 § 4268, subsec.4).

Parol evidence to show seller of restaurant was released from obligation not to operate restaurant by purchaser's temporary discontinuance of restaurant held inadmissible, where seller knew purchaser resumed operation when seller opened restaurant.

Charge that purchaser would not have to show specific damages to recover for seller's breach of covenant not to engage in similar business held proper.

Charge that pleadings are not evidence, but means for determining scope of trial, held proper.

Error from Superior Court, Douglas County; Price Edwards, Judge.

Suit by G. L. Holloway against Leno Brown, consolidated with suit by defendant named against plaintiff named.Judgment for defendant, and plaintiff brings error.

Affirmed.

Astor Merritt, of Douglasville, for plaintiff in error.

Geo. G Finch and F. L. Breen, both of Atlanta, for defendant in error.

GILBERT J.

Mrs Leno Brown bought from G. L. Holloway a restaurant which he was operating at Douglasville.She gave her promissory notes for part of the purchase money, secured by two mortgages, one covering personalty and the other covering real estate.Among the provisions in the contract covering the sale of the restaurant was the following: "In consideration of said premises and said sale, the said G. L. Holloway hereby covenants and agrees, that, so long as the said Mrs. Leno Brown shall personally operate a restaurant or café in the town of Douglasville, he will not engage in the operation of a restaurant or café in said town, it being the object and intention to convey to said Mrs. Leno Brown the good will of said business as well as the specific articles therein mentioned."Holloway sued Mrs. Brown on one of the notes, and sought to foreclose the two mortgages.In that suit Mrs. Brown filed an answer alleging that Holloway had breached the above provision of the contract by engaging in the restaurant business at Douglasville in competition with her; that because of this breach she had suffered damage to the extent of $1,000.She also sought to recover $37.50, which amount she alleged Holloway had represented to her had been deposited by him on account of bottled drinks, which he had not in fact done, and that she was obliged after the purchase to make the deposit.She prayed that Holloway be enjoined from operating a restaurant at Douglasville in competition with her.In another suit brought by Mrs. Brown against Holloway, she sought injunction to prevent him from operating a restaurant in violation of the terms of the contract.Both suits were pending in Douglas superior court.They were consolidated by the court, and interlocutory injunction was refused.On the trial of the case the jury found "that Mrs. Leno Brown is due damages of $350.00, including note and interest amounting to $134.92 and cash, $215.08."" The court made the following judgment: "The jury having found for the defendantMrs. Leno Brown, and against the plaintiffG. L. Holloway, in the sum of three hundred fifty dollars, and the jury having further found that the plaintiffG. L. Holloway was entitled to set off against said three hundred fifty dollars the amount of his note, together with interest, the total sum being thus set off to wit, $134.92, *** it is considered, ordered, adjudged, and decreed that the defendant *** have and recover of the plaintiff" $215.08, with costs of court, and "that the plaintiffG. L. Holloway be and he is hereby enjoined from working in, managing, controlling, assisting in the operation or, owning a café or restaurant in the town of Douglasville, Georgia, so long as the defendantMrs. Leno Brown...