Miami Butterine Co. v. Frankel

• Decision Date: 09 April 1940
• Docket Number: 13198,13223.
• Citation: 8 S.E.2d 398,190 Ga. 88
• Parties: MIAMI BUTTERINE CO. v. FRANKEL et al. FRANKEL et al. v. MIAMI BUTTERINE CO. et al.
• Court: Georgia Supreme Court

8 S.E.2d 398

190 Ga. 88

MIAMI BUTTERINE CO. v. FRANKEL et al.

FRANKEL et al. v. MIAMI BUTTERINE CO. et al.

Nos. 13198, 13223.

Supreme Court of Georgia

April 9, 1940

Syllabus by the Court.

1. Where a defendant files at the appearance term of the court a plea to the jurisdiction and a traverse of service, and not until the second or trial term files a plea of non est factum, a special demurrer, answer, and cross-action, in each of which pleadings it is recited that the defendant waives the plea to the jurisdiction therefore filed, it is error for the court to overrule a motion of the plaintiff to strike such pleadings filed at the second term, on the ground that they were filed too late.

2. It was not error to overrule the motion so far as it related to the general demurrer, since that demurrer may be filed at any time.

3. The contract relied upon by the plaintiff as a basis of his suit was unilateral, since, although it purported to bind one party to furnish, it did not purport to bind the other party to accept any of the products referred to therein.

4. A recital, 'for and in consideration of the sum of one dollar exchanged between the parties,' does not show a payment or a promise to pay, and therefore furnishes no consideration known to the law.

5. Since it was erroneous to refuse to dismiss the action on general demurrer, all subsequent steps in the case were nugatory.

L Frankel, alleging himself to be the assignee of a contract between his assignor, F. & F. Company, Inc., and Miami Butterine Company, filed a petition against Miami Butterine Company, a non-resident of the State, Georgia Egg &amp Poultry Company, Inc., and L. H. Coy, both residents of Fulton County, where the suit was filed. He alleged, that by the terms of the contract F. & F. Company and its assigns were made the sole distributor of all the products of Miami Butterine Company in the named territory in Georgia; that the three defendants were conspiring to breach this contract and to substitute, as such distributor, the other two defendants, and made detailed and extensive allegations setting forth the defendants' acts and doings as constituting such alleged conspiracy, as a result of which conduct of the defendants he had suffered damages, and that unless the defendants were immediately enjoined he would suffer irreparable damage. He prayed that the defendants be restrained and enjoined from soliciting orders for such products, and/or selling or delivering to any person, firm, or corporation within the territory designated, except through petitioner; that the property of the Butterine Company in this State be seized by attachment and a receiver be appointed to take charge of and hold the same pending final adjudication and determination of this cause of action; that he have judgment against the defendants and each of them, for damages sustained by him because of their alleged acts and conduct; and for general relief. Attached to the petition was a copy of the contract which it was alleged the defendants were conspiring to breach, as follows:

'Georgia, Fulton County.

'This contract, entered into between Miami Butterine Company, of Cincinnati, _____ County, Ohio, hereinafter referred to as party of the first part, and the F. & F. Company Inc., of Atlanta, Fulton County, Georgia, hereinafter referred to as party of the second part, witnesseth:

'1. That for and in consideration of the sum of one ($1.00) dollar exchanged between the parties, party of the first part does appoint party of the second part or its assigns, its sole distributor of all of its products and/or brands of margarine manufactured by it and sold within the State of Georgia.

'2. Said party of the second part shall be the exclusive agent and distributor for the entire State of Georgia, with the exception of the City of Augusta proper, and such territory as is now covered by the City Wholesale Company of Griffin, Georgia.

'3. This contract shall be for a term of five (5) years, with an option on the part of party of the second part to renew it for like periods from time to time hereafter, and may be ended prior to that time only by written consent of both parties.

'4. Said party of the second part agrees not to act as wholesale distributor for any other brand of margarine during the life of this agreement.

'5. Said party of the second part agrees to stand all costs of distribution, advertising, and promotion in the area above mentioned, except that said party of the first part shall from time to time furnish said party of the second part such printed matter and advertising copy as they do or may have available.

'6. It being agreed between the parties hereto at the undersigned date that the price quoted party of the second part by party of the first part is eleven and three-quarters (11 3/4) cents per pound, or approximately one and three-quarters (1 3/4) cents below the present price quoted on the Chicago market for this type of product, or at the option of party of the first part the ratio of 1 3/4 cents below jobbers price in the Southern territory (said Southern territory being States south of the southern boundaries of Tenn. and N.C. State lines). Party of the second part shall have the option of determining from books of party of the first part such quotations; and that should the general market price of margarine decline, a margin upon the same ratio as above stated to the party of the second part shall be allowed by party of the first part from time to time. Should the price increase, a sufficient reasonable notice to enable party of the second part to make preparations in order to cover itself against said increase shall be given to party of the second part by party of the first part. Said coverage shall not exceed two weeks normal supply.

'This contract executed in duplicate this ___ day of May, 1935.

'F. & F. Company, Louis Frankel (L.S.)

'The Miami Butterine Co. (L.S.)

'per C. K. Heidrich, Pres.'

'L. H. Coy, Witness.'

The action was made returnable to the November term, 1936. The Georgia Egg & Poultry Company filed answers at the appearance term, and Miami Butterine Company filed at that term its plea to the jurisdiction and a traverse of service, but no answer. But at the second term, waiving its plea to the jurisdiction, the Miami Butterine Company filed general and special demurrers, a plea of non est factum, and its answer and cross-action. The demurrers were overruled. The plaintiff filed a motion to strike the demurrers, the plea of non est factum, and the answer and cross-action, on the ground that they were filed too late. This motion was overruled. Exceptions pendente lite to these orders were filed by the plaintiff and the Miami Butterine Company, and error is assigned thereon in the bills of exceptions. Miami Butterine Company is the sole plaintiff in error in the main bill, in which it assigns error also on several other rulings and on the final judgment.

Walker & Kilbride and H. W. McLarty, all of Atlanta, for plaintiff in error.

A. S. Grove and H. W. McLarty, both of Atlanta, for defendants in error.

GRICE Justice.

1, 2. The first questions for consideration relate to the court's overruling of a motion by the plaintiff to strike the demurrers, plea of non est factum, answer and cross-action of the Miami Butterine Company, filed on February 17, 1937, on the ground that they were too late. The action was returnable to the November term, 1936, and the demurrers, general and special, plea, answer and cross-action were not filed at that term, but at the next succeeding term. 'All demurrers and pleas shall be filed at the first term.' Code, § 81-301. 'In all cases demurrer, pleas and answer shall be disposed of in the order named, and all demurrers and pleas shall be determined at the first term unless continued by the court or by consent of parties.' Section 81-1002. There being no demurrer, plea of non est factum, answer, or cross-action filed at the first term, the determination of such pleadings could not be 'continued' by the court beyond that term. The Code § 110-401, declares: 'In all cases, the judge at each term shall call the appearance docket upon some day previously fixed or on the last day of the term, and upon such call all cases in which the defendant has not filed a demurrer, plea, answer, or other defense shall be marked 'in default' on the docket.' It is true that this court in construing this last quoted section has held: 'Where the case has never been marked 'in default' on the docket, nor any order taken declaring the case to be 'in default,' it is error to dismiss an answer to the merits of the cause, filed at a term subsequent to the appearance term, because not filed in time.' Hall v. Tiedeman, 141 Ga. 602, 81 S.E. 868; McKenzie Co. v. Consolidated Lumber Co., 142 Ga. 375, 82 S.E. 1062; Compare Glass v. Allen, 141 Ga. 30, 80 S.E. 284; Hodnett v. Stewart, 131 Ga. 67(2), 68, 61 S.E. 1124; Gordon v. Hudson, 120 Ga. 698, 48 S.E. 131; Clifton v. Fiveash, 122 Ga. 383, 50 S.E. 134; Albany Pine Products Co. v. Hercules Mfg. Co., 123 Ga. 270, 51 S.E. 297. But those cases differ on their facts from the instant case, in that in the cases just referred to and quoted from no defense of any kind was filed at the appearance term, whereas in the case now before us the Miami Butterine Company did file at the appearance term a plea to the jurisdiction and a traverse of service; and such a plea must be construed as a form of defense, and comes within the meaning of the words 'or other defense' contained in the Code section last quoted; so that while it was still pending and not passed on and stricken by the court, the judge could not, even if moved so to do by plaintiff or his counsel, mark the case as 'in default' on the docket. Consequently ...