Lowery Lock Co. v. Wright
| Decision Date | 05 February 1923 |
| Docket Number | 3064. |
| Citation | 115 S.E. 801,154 Ga. 867 |
| Parties | LOWERY LOCK CO. ET AL. v. WRIGHT. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
There was no error in the rulings of the court upon demurrer.
(a) A petition which, though defective, sets forth a cause of action is not subject to be dismissed on general demurrer.
(b) Since the passage of the Uniform Procedure Act of 1887 (Civ Code 1910, § 5406), a demurrer, based alone upon the statement that the plaintiff has an adequate remedy at law cannot be sustained. Though a plaintiff may seek to recover damages, and to that extent may have prima facie an adequate remedy at law, when it appears from the allegations of the petition that the plaintiff has an equitable interest to protect, and that the intervention of equity is necessary to safeguard his legal rights during the pendency of the litigation, or that the legal remedy will be nugatory without the co-operation of equity, the aid of a court of equity may be invoked.
(c) The court did not err in overruling the demurrer to the petition based upon the ground of misjoinder. The plea of misjoinder cannot be raised by a party in any cause for or in behalf of another party. The defendant against whom there is a sufficient complaint cannot object that others who have no interest in the subject-matter of the suit are made defendants, unless it also appears that his interests are affected thereby. "One defendant cannot demur for multifariousness, on the ground of the joinder of another defendant who does not object."
(d) A demurrer which is defective is impotent. The law follows the Scripture in that a demurrer is not permitted, while disregarding the beam in its own eye, to point out the mote in the eye of another. Demurrer, being a critic, must itself be free from imperfection.
(e) The court did not err in overruling the demurrer to the effect that the contract was unilateral. In a strict sense a contract is unilateral and unenforceable when one party to it is bound and the other is not, or when one party gets something and the other nothing. But mutual promises may supply sufficient consideration to render the contract operative and enforceable; and a contract, from which it appears that rights which are granted to be exercised in the future are based largely upon past payments, or advances of money, cannot be said to be unilateral.
The contract in the present case conveyed to the plaintiff only sole and exclusive selling rights, in the United States and foreign countries, to a patented lock described therein.
The trial court properly construed the provisions of the contract in holding that the duty was imposed upon the defendant to manufacture the device or lock, which the plaintiff obligated himself to sell. While there is no express statement to this effect, the implication is irresistible when all of the stipulations of the contract are considered together, as they must be in determining the intention of the parties in making the contract, and the purposes for which the contract was made.
In cases of ambiguity the meaning of the words employed in a contract may be explained by parol evidence; not for the purpose of varying the contract or of adding thereto new stipulations or conditions, but to serve the sole purpose of rendering plain the doubtful meaning of the language employed, and in order to make clear the intention of the parties. In view of this ruling, it is directed that the amendment which purports to explain ambiguity in the contract by parol testimony be stricken before a trial.
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Action by J. L. Wright against the Lowery Lock Company and others. Judgment for plaintiff, and defendants bring error. Affirmed.
Reuben R. Arnold, Lowry Arnold, and Mallet & Bell, all of Atlanta for plaintiffs in error.
Napier, Wright & Wood and Julian S. Chambers, all of Atlanta, for defendant in error.
This case is before the court on exceptions to the overruling of a number of demurrers filed by the defendant the Lowery Lock Company to the plaintiff's petition and the several amendments thereto. Wright, the plaintiff in the court below, brought a suit against the Lowery Lock Company, one Gray, and one Buttrell, to recover expenses he alleged he had been put to in carrying out an alleged contract, as well as a large sum for alleged profits which would have accrued but for a breach of the contract. Liability for the items of money expended, as well as for the probable profits, was asserted against the Lowery Lock Company alone; but Gray and Buttrell were also named as defendants, in view of the fact that equitable relief was prayed against them, though no judgment was sought against them as individuals. So far as appears from the record, neither Gray nor Buttrell appeared, either by plea, answer, or demurrer, in the court below. The Lowery Lock Company demurred upon the ground that the petition set forth no cause for equitable relief, nor any cause of action; upon the ground of misjoinder; upon the ground that the contract, the basis of the plaintiff's suit, was void and unenforceable, because unilateral. Upon these demurrers the trial judge at one time passed an order sustaining the general demurrer, giving the plaintiff, however, the privilege of amending within a time specified in the order.
In our view of the case it would be profitless to recite the various allegations of the two amendments that were allowed by the court in amplification of the original petition, though we will later refer to the last amendment, in which the court allowed the plaintiff to set up, if he could, a parol agreement as to who was to manufacture the grip locks, as explanatory of the original contract upon which the plaintiff relied. This amendment was as follows:
"Further amending as to the agreement to manufacture locks, by the Lowery Lock Company, as set forth in paragraph 3 of the amendment allowed November 18, 1921, plaintiff alleges that the same was an oral or verbal agreement."
The demurrer is as follows:
It was demurred to on the ground that it sought to contradict, alter, and vary the terms of a written contract and to substitute a parol agreement for the written contract. The trial judge could, without violating the well-recognized rule to which the demurrer refers, have overruled the demurrer if he was of the opinion that contract was ambiguous on the point. However, in view of our holding, as will hereafter appear, that, fairly construing the contract as a whole, the duty of manufacturing the transmission grip lock was upon the defendant the Lowery Lock Company, the allowance of the amendment and the overruling of the defendants' demurrer thereto is too immaterial to afford ground for reversal of the judgment of the trial judge; no other error appearing. We therefore direct that the demurrer be sustained, and the amendment just quoted be stricken in advance of the trial.
The first question which naturally arises is as to whether the court erred in overruling the demurrers to the petition as a whole, including all the amendments allowed. If the petition set forth a cause of action at all, it is not subject to be dismissed on general demurrer. Consequently, it cannot be said that the trial judge erred in overruling the demurrer which alleged that the petition did not set forth a cause of action, even though many of the statements of the petition be dim and vague and might be subject to special demurrer. Another ground of the demurrer challenges the petition for want of equity, and denies that the facts set forth in the petition afford any ground for the intervention of equity, or for equitable relief. We do not think the trial judge erred in overruling this ground of the demurrer. Although the plaintiff only sought to recover damages, and to that extent had an adequate remedy at law, it was not improper, in view of the allegations as to his interest in the property, for the plaintiff to ask that his legal rights be safeguarded during the pendency of the litigation. Instances might be multiplied of cases where a legal remedy would be rendered absolutely nugatory but for the assistance of a court of equity and the timely intervention of equitable relief. Equity is the handmaiden of the law. Its functions are in a sense ancillary, and this must be peculiarly recognized in a state like ours, where, since the passage of the act of 1887 (Civil Code, §§ 5406, 5508), distinctions in procedure in law and equity have been obliterated and "swept away." To use the language of Mr. Justice Simmons in De Lacy v. Hurst, 83 Ga. 223, 230, 9 S.E. 1052, 1054:
"For myself, I can say that I am glad that the Legislature had the wisdom to sweep away, by one act, all these forms and technicalities, and to provide for the trial and determination of all the plaintiff's or defendant's rights in one action."
On pages 228, 229 of 83 Ga., on page 1054 of 9 S. E., Judge Simmons says:
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