Reid v. Bryant
| Decision Date | 10 September 1951 |
| Docket Number | No. 17531,17531 |
| Citation | 66 S.E.2d 826,208 Ga. 328 |
| Parties | REID v. BRYANT. |
| Court | Georgia Supreme Court |
C. Wesley Killebrew, H. A. Woodward, Augustra, for plaintiff in error.
Cohen & Cohen and Paul T. Chance, Augusta, for defendant in error.
Syllabus Opinion by the Court.
1. While the purchase of the service-station premises might alone constitute sufficient consideration for the verbal agreement of the seller not to operate a similar business on his adjoining land for a period of eight and one-half years, Langenback v. Mays, 205 Ga. 706, 54 S.E.2d 401, 11 A.L.R.2d 1221, yet the mutual obligations under the verbal agreement constituted consideration to support the contract which became binding upon each, prohibiting the seller from operating a service station on his land adjoining that sold for eight and one-half years, and the buyer from operating a beauty parlor or taxi business on the purchased premises for a like period, and this was a separate independent agreement. It follows that the petitioner is not entitled to reformation of the deed to merge the collateral oral agreement therein. Quiggle v. Vining, 125 Ga. 98, 54 S.E. 74; Rawson v. Brosnan, 187 Ga. 624, 1 S.E.2d 423; Brooks v. Northwestern Mutual Life Ins. Co., 193 Ga. 522, 18 S.E.2d 860.
2. If the seller breached his contract by operating a service station upon the land adjacent to the land sold within the period of eight and one-half years, the buyer could either accept the breach and sue for damages, or he could waive the tort and sue to enforce the contract. Code, § 105-105. But he cannot collect in damages the full value of the contract and--in the same suit--compel performance of that contract. The amended petition however, shows no more than a threat by specified acts to breach the contract and seeks to prevent the same by injunction, and hence, this portion was sufficient to withstand the general demurrer and the court did not err in overruling the same. Spier v. Lambdin, 45 Ga. 319, 320; Busk v. F. Wolf & Co., 143 Ga. 18, 84 S.E. 63; Wells v. First National Exhibitors' Circuit, 149 Ga. 200, 99 S.E. 615; English v. Little, 164 Ga. 805, 139 S.E. 678; Lathem v. Odell, 166 Ga. 187, 142 S.E. 558.
3. The second count, seeking damages, expressly attempts to embody therein paragraphs one through twenty-four as amended of count one by merely listing the numbers of the paragraphs. This cannot be done. Cooper v. Robert Portner Brewing Co., 112 Ga. 894, 900, 38 S.E. 91; Saliba v. Saliba, 202 Ga. 791, 795, 44 S.E.2d 744. The remainder of count two is wholly insufficient to allege grounds for the relief prayed, and the court erred in overruling the general demurrer thereto.
4. Upon the defendant in error's request, an amendment to the petition therein referred to and ordered up by the court was allowed and filed after the judgment complained of here was rendered, and, therefore, it cannot be considered by this court and must...
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...not even by reference be made a part of another count. Cooper v. Robert Portner Brewing Co., 112 Ga. 894(3), 38 S.E. 91; Reid v. Bryant, 208 Ga. 328, 66 S.E.2d 826. A logical extension of that rule would seem to be that separate and distinct answers were required to be made to the various c......
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