Swanson v. Kirby

• Decision Date: 18 June 1896
• Citation: 98 Ga. 586,26 S.E. 71
• Parties: SWANSON. v. KIRBY et al.
• Court: Georgia Supreme Court

26 S.E. 71

98 Ga. 586

SWANSON.

v.KIRBY et al.

Supreme Court of Georgia.

June 18, 1896.

Bale of Good Will — Action for Breach of Contract—Pleading—Damages—Injunction.

1. Under the system of pleading which prevails in this state, an action may be brought against one who has sold out a given business, and contracted not to again carry on the same in a particular locality, both to recover such damages as may have accrued to the plaintiff from a breach of the contract up to the bringing of the action, and to restrain the defendant from a further violation of his agreement.

2. Where such an agreement, though unlimit-ed as to time, is limited as to place, and is in this and in other respects reasonable and proper, it is valid, and also assignable; and the assignee may maintain such an action against the party violating his covenant not to engage in the business in question in the locality designated.

3. Under the evidence submitted, there was no abuse of discretion in granting the injunction prayed for in the present case.

(Syllabus by the Court.)

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by E. E. Kirby and another against J. M. Swanson for an injunction. From a judgment granting the writ, defendant brings error. Affirmed.

The following is the official report:

On October 1, 1894, J. M. Swanson executed a contract as follows: "Atlanta, Ga., Oct. 1st, 1894. For and in consideration of the sum of $1,500.00, I hereby sell and convey to E. E. Kirby my membership No. 19 in the American Ticket Brokers' Association, also my fire and burglar proof safe, desk, typewriter, and all other office fixtures contained in my office at 30 Wall street, this city. I guaranty the above to be free from all incumbrance. I also agree not to open a ticket office in this city of Atlanta without the consent of the said E. E. Kirby." In the same month Kirby executed upon this contract a transfer to E. S. Pratt, in consideration of $2,000, of the membership and personal property therein conveyed to him by Swanson. On August 24, 1895, Pratt executed to W. W. Moore, in consideration of $1,000, all his right and title to said property, and on September 2, 1895, Moore executed to Kirby, in consideration of $500, half of all his right, title, and interest in the within contract, except the membership in the American Ticket Brokers' Association and the personal property therein enumerated. On October 11, 1895, Kirliy and Moore brought their petition against Swanson for injunction to prevent him from keeping open a ticket office and conducting a ticket brokerage business in the city of Atlanta. On the hearing the injunction was granted. The petition, which was positively sworn to by both plaintiffs, alleges that membership No. 19 in said association was a valuable right, franchise, and property; that for a long time, up to October 1, 1894, Swanson had been conducting a ticket broker's business in Atlanta; that one of the inducements which led Kirby to buy from him the membership in the ticket brokers' association, and to pay $1,500 therefor, was his agreement not to reopen a ticket office in Atlanta without Kirby's consent; that Swanson, in disregard of his agreement, has opened, and is now keeping open, a ticket office, and conducting the business of ticket broker in Atlanta, and but for his agreement not to do so Kirby would not have made the purchase shown by the contract; that Kirby was engaged in the business of a ticket broker in Atlanta when he bought out Swanson, and is still so engaged; that petitioners are irreparably damaged, by reason of the difficulty in proving the damage they will sustain if Swanson is permitted to keep open his office, and conduct a ticket brokerage business in Atlanta, and, besides, he is insolvent; that he is now actively engaged in the business, competing with petitioners in said business, and doing all he can to take from them their business and customers; that they have been damaged $1,000 by said violation of the agreement; that Swanson holds license from the city to conduct said business, and, if he is allowed to carry on the same under said license, or to transfer the license and good will of the business to a third party, petitioners will suffer irreparable damages. They waived discovery, and prayed for injunction, that they may recover from Swanson all damage which they have sustained and may sustain by reason of the breach of said agreement; and for general relief. At the hearing they were allowed to amend the allegations and prayer for damages by alleging that they had been damaged $1,000 to this date, and by praying to recover all damage which they have sustained to the time of filing the petition, and by striking the prayer for damage that they may sustain.

No answer by defendant appears to have been filed, but at the hearing there was testimony by himself, S. L. Harris, and Alexander Stewart, in substance as follows: It is true he sold out his business to Kirby on October 1, 1894, as ticket broker in Atlanta, with the office furniture, and Kirby went into business in his former office, and undertook and agreed with him to pay the rent of $50 per month for the place, for which Swanson was liable under a lease till October 1, 1895, the landlord having refused to release him therefrom. Kirby kept the office till about June 30, 1895, carrying on the business therein, but then abandoned the business, went away from Atlanta, closed the office, and removed everything therefrom, left nothing out of which the rent could be made, and then entirely abandoned the ticket business in Atlanta. About that time Kirby told him he had to quit the business, had lost all he had therein, and had not a dollar with which to pay the rent. He then tried to get Swanson to go back into the ticket business with him in Atlanta, which Swanson refused to do. He begged Swanson to assist him in getting back into the business in Atlanta. He knew full well that Swanson was contemplating re-entering the business in Atlanta, but made no objection thereto. They talked over the matter a number of times. Kirby knew Swanson was contemplating going back into the business, and under these circumstances begged him to go back with him, and take a half interest in the business. Kirby was willing for him, if he would go in with him, to employ a clerk, and put in the office, and allow Swanson to run another and separate office of his own, so as not to interfere with Swanson giving his whole time to his ownoffice. He finally went with Kirby to the | landlord to see what arrangement could be made about renting an office for Kirby with a view of going in business with him, but no arrangement was made, and he dropped the negotiations. Afterwards he did make an arrangement with the landlord, whereby Kirby was enabled to get an office, and go back into business, and but for this...