Milton Frank Allen Publications, Inc. v. Georgia Ass'n of Petroleum Retailers, Inc.
| Decision Date | 10 February 1964 |
| Docket Number | Nos. 22252,22257,s. 22252 |
| Citation | 219 Ga. 665,135 S.E.2d 330 |
| Parties | MILTON FRANK ALLEN PUBLICATIONS, Inc., et al. v. GEORGIA ASSOCIATION OF PETROLEUM RETAILERS, INC. GEORGIA ASSOCIATION OF PETROLEUM RETAILERS, INC. v. MILTON FRANK ALLEN PUBLICATIONS, INC., et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. 2. Since the petition alleged a cause of action for construction of the contract, the general demurrers to the petition were properly overruled.
3. The special demurrers to the petition were not meritorious.
4. The assignment of error as to the lack of authority of the persons filing this suit in the name of the plaintiff presents nothing for review.
5. The portion of the interlocutory order construing the contract was erroneous since there were ambiguities raising questions of fact for a jury.
6. The provision of such order granting injunctive relief was improper in view of its erroneous basis.
Sams & Sams, Augustine Sams, Marion A. Sams, Edward, S. Sams, Atlanta, for plaintiff in error.
James A. Mackay, Thomas O. Davis, Decatur, for defendant in error.
This controversy is over the validity and construction of a contract for the publication of a trade magazine.
The litigation began with the filing of a petition in the Superior Court of DeKalb County by the Georgia Association of Petroleum Retailers, Inc., hereinafter referred to as the 'Association,' against Milton Frank Allen Publications, Inc., hereinafter referred to as the 'Publisher,' and Milton Frank Allen.
The petition, insofar as material here, made the allegations which follow.
The plaintiff Association is a non-profit, non-stock corporation, organized to promote the welfare and advancement of retailers of petroleum products and their affiliated and interrelated businesses.
The Association, through its president and treasurer, on March 26, 1946, entered into a purported contract with Allen, for the publication of 'The Georgia Petroleum Retailer.' Allen organized the Publisher which claims the right to publish and does publish such magazine under the direction of Allen, its president and editor. There is an actual controversy between the Association, on the one hand, and Allen and the Publisher, on the other, with respect to the force, binding effect and validity of that contract, the material provisions of which are hereinafter set forth.
The Association contends that the purported contract is invalid because: (a) it is ultra vires in that it purports to authorize Allen and his assignee, the Publisher, to substitute their judgment for that of the officers of the Association in promoting and carrying out the purposes for which the Association was chartered, and to unreasonably prohibit and restrict its officers from communicating with its members and with other retailers of petroleum products through printed matter; (b) it is unreasonable in that it contemplates rendition of personal services, including exercise of judgment, by an individual for 90 years, which is beyond the Association's corporate existence and the individual's life expectancy, and the provision that Allen may incorporate and transfer such contract to a proposed corporation is an unlawful delegation of the Association's corporate authority to another, yet unorganized, corporation and amounts to the surrender and restriction of the Association's right to exercise its judgment in communicating with its members through printed words; (c) it is vague, uncertain, indefinite and ambiguous in its terms and hence unenforceable because it fails to define the term 'official organ,' and fails to specify the rights of the respective parties in determining the content of the printed matter, or which party has the right to formulate the words texts, and contents of such communications, or what matter may be included other than 'information to be disseminated to the Association members and other retailers of petroleum products,' or the meaning of the term 'to speak officially for the Association in printed form'; (d) the purported contract is contrary to public policy applicable to control and management of corporate affairs by its own officers and members.
The Association contends that it has the right to determine what information published in printed form best serves its purposes and those of its members, that the free exercise of its judgment in determining its policies and methods cannot lawfully be delegated to Allen and the Publisher, that they have no right to dictate its policies and determine what information shall be published for it, and that it has the right to carry out and perform its objects and purposes.
Allen and the Publisher, on the contrary, contend that they, and not the Association, have the right, under such contract, to determine what information shall be printed in the magazine and disseminated to the members of the Association as the official expression of its policies and the method of accomplishing its purposes, and that they are not required to publish information desired to be published by it, if they have a different opinion.
Allen and the Publisher claim the magazine is the 'official publication' of the Association, and print that designation in it. The Association denies that they have the right to hold out said magazine as its 'official publication' and 'official organ.' On January 11, 1963, its attorney so notified them and also notified them that the subscription price included in membership fees collected by them belonged to the Association. Thereafter, on February 22, 1963, the Association's attorney requested that Allen and the Publisher make no suggestion in the forthcoming issue of the magazine that it had the Association's sanction and that it delete all reference to the effect that it was the official organ of the Association, and also demanded that the Publisher remit to the Association all subscription fees collected from its members subsequent to its notification of January 11, 1963.
Allen and the Publisher refused to delete such references, but insisted upon the right to publish the magazine as such official organ and refused to remit the subscription fees so collected. Also, in the following issue of the magazine, they again claimed that it is the 'official publication' and 'official organ' of the Association.
Unless restrained and enjoined from so doing, they will continue to claim that said magazine is speaking officially for the Association despite the fact that it does not supply information.
Allen and the Publisher, since January 11, 1963, have collected membership fees from the Association's members, and have deducted therefrom $1.50 as each member's subscription fee to said magazine. These sums belong to the Association, but Allen and the Publisher refuse to account to it therefor.
The prayers were for (a) process; (b) declaration of the rights and legal relations of the parties with respect to the purported contract; (c) declaration that the contract is invalid; (d) temporary and permanent injunction against Allen and the Publisher representing in the magazine that it is the 'official organ' or 'official publication' of the Association and from representing that it is the official spokesman for the Association; (e) an accounting for all subscription fees collected; (f) rule nisi; and (g) general relief.
Allen and the Publisher filed general and special demurrers to this petition. They also interposed an answer and cross action which, under our view of the case, need not be recited here.
The trial court overruled the demurrers. Upon an interlocutory hearing with evidence it entered an order ruling the contract valid, construing it and declaring the rights and legal relations of the parties, and temporarily enjoining all parties from using the magazine in any manner other than as set forth in such order.
Allen and the Publisher assigned error as follows: (1) the overruling of their general and special demurrers; (2) the denial of their so-called 'plea' asserting lack of authority for the filing of this suit; (3) the grant of the injunctive relief above referred to; and (4) the paragraph of the inter-locutory order which purports to construe the contract.
In its cross bill of exceptions, the Association assigned error upon the ruling that the contract is valid.
The contract provides in material portions as follows:
'That [the Association] is incorporated as a non-profit association to promote and advance the welfare of retailers of petroleum products and their affiliated and inter-related businesses * * *. To accomplish the object of the corporation it is necessary that a magazine for said industry be published at least monthly and circulated among those engaged in the retail sale of oils and petroleum products. [Allen] agrees to publish a magazine, known as The Georgia Petroleum Retailer, to meet such requirements of [the Association]. It is therefore agreed: * * * in consideration for the services rendered by [Allen] in publishing a magazine designed to promote the general welfare, aims and purposes of those who are members of the association, [it] does hereby make and declare the following agreement with [Allen].
'I. That [Allen] for a period of thirty years after this date [March 26, 1946], and with the option of renewing for two additional and consecutive periods of thirty years each, has the sole and exclusive right to publish a magazine, owned by [Allen] and known as the Official Organ of the Association * * * and which magazine shall continue to hold such official sanction exclusively during the life of this contract and any renewal under option.
'II. A subscription fee for said magazine amounting to $1.50 per year for each member of the Association shall be paid to [Allen], except that during the existence of a contract, separate and distinct from this one, between [the Association] and [Allen] for the soliciting of memberships, such $1.50 shall be first deducted...
To continue reading
Request your trial
-
Ditmyer v. American Liberty Ins. Co., 43155
...Ga. 547, 548(2), 117 S.E.2d 897; Dunn v. Campbell, 219 Ga. 412, 415, 134 S.E.2d 20; Milton Frank Allen Publications, Inc. v. Georgia Assn. of Petroleum Retailers, 219 Ga. 665, 670(1a), 135 S.E.2d 330; American Mut. Ins. Co. of Boston v. Aderholt, 114 Ga.App. 508, 151 S.E.2d 833. See also Ja......
-
LaSalle Nat. Ins. Co. v. Popham
...217 Ga. 541, 542, 123 S.E.2d 721; Dunn v. Campbell, 219 Ga. 412, 415, 134 S.E.2d 20; Milton Frank Allen Publications Inc. et al. v. Ga. Assn. of Petroleum Retailers, 219 Ga. 665, 671, 135 S.E.2d 330; Salomon et al. v. Central of Ga. Rwy. Co., 220 Ga. 671, 672, 141 S.E.2d 424; Womble v. Geor......
-
Triple Eagle Associates Inc. v. Pbk Inc.
...incomplete, vague, indefinite, or uncertain.”(citation and punctuation omitted)). 10. Milton Frank Allen Publ'ns v. Ga. Ass'n of Petroleum Retailers, 219 Ga. 665, 672–73(1)(b)(iii), 135 S.E.2d 330 (1964) (quoting Leffler Co. v. Dickerson, 1 Ga.App. 63(1), 57 S.E. 911 (1907)); Leffler Co., 1......
-
Pinnacle Benning, LLC v. Clark Realty Capital, LLC
...(emphasis supplied) (punctuation omitted). 13. Id. (punctuation omitted); see also Milton Frank Allen Publ'ns, Inc. v. Ga. Ass'n of Petroleum Retailers, Inc., 219 Ga. 665, 671(1)(a), 135 S.E.2d 330 (1964) (“The object of the declaratory judgment is to permit determination of a controversy b......