Nexus Services, Inc. v. Manning Tronics, Inc.

• Decision Date: 19 September 1991
• Docket Number: No. A91A0932,A91A0932
• Parties: NEXUS SERVICES, INC. v. MANNING TRONICS, INC. et al.
• Court: Georgia Court of Appeals

Page 810

410 S.E.2d 810

201 Ga.App. 255

NEXUS SERVICES, INC. v. MANNING TRONICS, INC. et al.

No. A91A0932.

Court of Appeals of Georgia.

Sept. 19, 1991.

Walden G. Housman, Jr., Athens, for appellant.

Robert G. Stephens, Jr., Athens, for appellees.

CARLEY, Presiding Judge.

The business relationship between appellant-plaintiff and appellee-defendants ultimately resulted in the filing of the instant multi-count lawsuit. Appellant appeals from the trial court's grant of summary judgment in favor of appellees as to two of the counts.

1. One count of appellant's complaint alleged that appellee-corporate president had tortiously interfered with contractual relations in that he "refused to cooperate with [appellant], refused to provide necessary technical support, and otherwise caused [appellee-corporation] to breach its contracts with [appellant]."

"Tortious interference with contractual relations is applicable only when the interference is done by one who is a stranger to the contract. [Cits.] All of the [omissions] of [appellee-corporate president] complained of by [appellant] were [of acts which could be required of him only in his capacity] as agent for a contracting party[, i.e., appellee-corporation,] and ... within the scope of [his] duties as agent. [Cits.] Summary judgment on [this] count was not error...." Jet Air, Inc. v. Nat. Union Fire Ins. Co., 189 Ga.App. 399, 403-404(4), 375 S.E.2d 873 (1988). See also Miller, Stevenson & Steinichen, Inc. v. Mallett, 196 Ga.App. 129, 130, 395 S.E.2d 381 (1990).

2. The other count of appellant's complaint had alleged that certain "statements of [appellees] constitute fraud in [the] inducement, for which fraud [appellant is] due actual and punitive damages, plus costs and attorney['s] fees."

In support of their motion as to this count, appellees introduced evidence that the parties had entered into a written contract on March 4, 1987 and that, in connection therewith, appellant had received products manufactured by appellee-corporation. The written contract contains a merger clause which provides "in essence that no representation, promise or inducement not included in the contract shall bind any party. [Cit.]" Carpenter v. Curtis, 196 Ga.App. 234, 236, 395 S.E.2d 653 (1990). Accordingly, unless appellant had effectively rescinded this contract by promptly returning or offering to return the products to appellee-corporation, it had no viable tort claim for such misrepresentations as had allegedly induced it into entering therein. "The presence of a merger clause in the underlying contract is determinative if the defrauded party has not rescinded but has elected to affirm the contract.... Critical to rescission is the tender of benefits, the prompt restoration or offer to restore whatever the complaining party received by virtue of the contract[.] [Cits.]" Carpenter v. Curtis, supra at 236-237, 395 S.E.2d 653.

In opposition to appellees' motion, appellant relied only upon the complaint wherein it had alleged that it "hereby rescind[s] the contracts, and tender[s] back ... all benefits and rights accruing to [it]...." (Emphasis supplied.) However, this allegation of only a contemporaneous restoration is not sufficient to aver such a viable rescission of the written contract as would authorize appellant to...