Milton Frank Allen Publications, Inc. v. Georgia Ass'n of Petroleum Retailers, Inc., 24350

• Decision Date: 09 November 1967
• Docket Number: No. 24350,24350
• Citation: 158 S.E.2d 248,223 Ga. 784
• Parties: MILTON FRANK ALLEN PUBLICATIONS, INC. v. GEORGIA ASSOCIATION OF PETROLEUM RETAILERS, INC.
• Court: Georgia Supreme Court

Page 248

158 S.E.2d 248

223 Ga. 784

MILTON FRANK ALLEN PUBLICATIONS, INC. v. GEORGIA ASSOCIATION OF PETROLEUM RETAILERS, INC.

No. 24350.

Supreme Court of Georgia.

Nov. 9, 1967.

Syllabus by the Court

There being conflicting evidence on the issues raised by the pleadings, the trial judge did not abuse his discretion in denying an interlocutory injunction.

Westmoreland, Hall & O'Brien, John L. Westmoreland, Donald E. O'Brien, Atlanta, for appellant.

Mackay & Elliott, James A. Mackay, Decatur, Arnall, Golden & Gregory, Cleburne E. Gregory, Atlanta, for appellee.

ALMAND, Presiding Justice.

The judgment under review is one denying an interlocutory injunction.

Milton Frank Allen Publications, Inc., in its petition against Georgia Association of Petroleum Retailers, Inc., a nonprofit Georgia corporation, sought to enjoin the defendant from breaching certain contracts between the parties and other equitable relief.

According to the petition two or more contracts were entered into by the parties, but the main one which was entered into on March 26, 1946, granted to the plaintiff the sole and exclusive right to solicit members for the defendant association for which the plaintiff would receive 75% of the annual dues of the association's members. At the time the contract was entered into, the annual membership dues were fixed at $10 per member with the right of the board of directors of the association by a two-thirds vote to increase the dues to an amount not in excess of $25. The dues were increased in 1948, but in August of 1964 the defendant notified the plaintiff that effective January 1, 1965, the annual dues would be $10.

The plaintiff asserted that this purported action was a breach of the contract in that the defendant could increase the annual dues but could not reduce the annual dues. A copy of this contract was attached to the petition. Section 1 of this contract provided: 'That second party (plaintiff) for a period of thirty years after this date, and with the irrevocable option of renewing for two additional and consecutive periods of thirty years each, has the sole and exclusive right to solicit members for the Georgia Association and Petroleum Retailers, Inc. The membership dues shall be fixed at not less than $10 per year paid in advance for one year's membership in the association. The first party (defendant) has the right on a vote carried by 2/3rds majority of a quorum present at a regular meeting of the board of directors of the association to fix the dues per year at a higher amount in round figures up to, including but not to exceed $25, such an increase in dues to take effect January 1st of the next year and not to apply to members of record until renewal date, and provided three months notice in writing is furnished the second party.' Also attached to the petition was another contract, dated March 26, 1946, between the parties which granted to the plaintiff the sole and exclusive right to publish a magazine known as the Georgia Petroleum Retailer, the official organ of the defendant association, for a period of 'thirty years after this date, and with the option of renewing for two additional and consecutive periods of thirty years each.' A subscription fee of $1.50 per year for each member was to be paid to plaintiff by allowing him to deduct said amount from the membership dues.

The defendant filed its general demurrer and answer to the petition. The court sustained the general demurrer, and the plaintiff on appeal obtained a reversal in this court in Milton Frank Allen Publications, Inc. v. Georgia Association of Petroleum Retailers, Inc., 221 Ga. 495, 145 S.E.2d 497. We there ruled that: 'The trial court erred in sustaining the general demurrer to the petition as it is sufficient to allege a breach of contract by allegations that defendant corporation had attempted to lower the dues of its members when said contract provided only for increasing the dues and made no provision for lowering them, and as petitioner set forth other grounds for equitable relief.

'The trial court erred in sustaining the general demurrer based upon the ground that the making of the contract sued upon was an unauthorized, ultra vires act on the part of defendant corporation, as such defense cannot be raised on general demurrer where the petition does not set out the charter of the defendant corporation or any of its material parts, and here, petitioner is not required to do so.'

In its answer the defendant alleged that Milton Frank Allen was one of the...