Swanson v. Kirby

26 S.E. 71, 98 Ga. 586

• Court: Supreme Court of Georgia
• Decided: June 18, 1896
• Status: Published

Opinion

Lumpkin, Justice.

The principal complaint in the present bill of exceptions is that the trial judge erred in granting an injunction. It alleges, among other things, that so doing was error, (1) “because the petition prayed for injunction and damages at the same time,” and (2) because the evidence did not warrant the injunction. The nature of the case will be gathered from the official report.

1. We do not see why a prayer for the recovery of damages should affect the question of granting an injunction in a given case. Indeed, under the system of pleading which prevails in this State, no good reason occurs to us why a plaintiff may not recover damages wMchat the time of the bringing of his action had already accrued to him from a breach of the defendant’s contract, and at the same time restrain the defendant from a further violation of the contract, if the facts are such as to .entitle the plaintiff to relief of this nature.

2, 3. “Contracts in total restraint of trade are void; but where the restraint is partial, reasonable and founded upon a good consideration, it is valid, and will be enforced.” 3 Am. & Eng. Enc. of Law, 882. In support of this text a very large number of cases are cited in the notes on pages 882-885. An examination of them will throw a flood of light upon the law relating to contracts in restraint of trade. The proper conclusions deducible from them, so far as applicable to the case in hand, are, we think, correctly stated in the second head-note. For the proposition that such agreements are assignable, see: Elves v. Crofts, 10 C. B. 239; Hedge, Elliott & Co. v. Lowe, 47 Iowa, 137; Gompers et al. v. Rochester, 56 Pa. St. 194; Guerand v. Dandelet, 32 Md. 561; California Steam Navigation Co. v. Wright, 6 Cal. 258. Judgment affirmed.