Paxson v. Butterick Publishing Co. , 136 Ga. 774 ( 1911 )

Evans, P. J.

The Butterick Publishing Company and Paxson Brothers entered into a written contract whereby the former contracted to sell the latter a certain quantity of patterns, and the latter engaged to constantly keep on hand and sell the former’s patterns, to order at least a stated amount of patterns monthly, and to pay accrued indebtedness on the 15th of each month. The contractivas for three years, and longer if not terminated by three months written notice of either party. The contract contained this stipulation: “Failure or neglect by either party to perform any provision of this order will, at the option of the other, release the other party from all obligations hereunder.” The Butterick Company continued to ship goods under the contract until Paxson Brothers became indebted to them in a certain amount and had several times defaulted in their payments. Paxson Brothers oidered certain patterns, which the Butterick Company refused to ship unless Paxson Brothers settled their past-due indebtedness. Paxson Brothers then notified the Butterick Company that they-deemed their refusal to furnish patterns as a violation of the -contract, and that they elected to treat the contract as at an end, and purchased and undertook to sell patterns obtained from another manufacturer. Whereupon the Butterick Company filed-its petition against Paxson Brothers to enjoin them from selling any patterns, except those of-the plaintiff, until the termination of the contract. The court granted an interlocutory injunction.

1. The failure of Paxson Brothers to pay for the patterns . agreeably to their contract entitled the Butterick Company to terminate the contract at its option. Failure to make payments for articles delivered under a contract during a series of years, to .be delivered in installments and paid for monthly, entitles the vendor to rescind the contract. Savannah Ice Co. v. American Refrigerator &c. Co., 110 Ga. 142 (35 S. E. 280). It would be unjust to compel the vendor to continue to make deliveries to one who con- ■ tinues to default in his payments. The parties to the contract did; not wish any doubt to cling around this principle of law as applied to their contract, and incorporated its essence in the stipulation” that “failure or neglect by either party to perform any provision. of this order will, at the option of the other, release the other.party from all obligations hereunder.” When Paxson Brothers, ordered additional patterns, the Butterick Company was put to an election to. rescind the contract because of the default of Paxson Brothers in making payments, or to comply with its covenants. Whether or not we treat the refusal to furnish patterns unless past-due installments are paid as a rescission, certainly it is not in a position, after refusing to furnish patterns, to enjoin the defendants from selling patterns elsewhere obtained, on the ground that they contracted to sell exclusively the Butterick patterns. Smith v. Georgia Loan &c. Co., 113 Ga. 975 (39 S. E. 410); Harden v. Lang, 110 Ga. 392 (36 S. E. 100).

2. Although not pressed in the argument, we think also that the principle announced in the Civil Code (1910), § 5496, controls the disposition of tliis case. That section reads: “Generally an injunction will not issue to restrain the breach of a contract for personal services, unless they are of a peculiar merit or character, and can not be performed by' others.” The grounds set forth in the petition for injunction were, that the plaintiff conducted its business through exclusive agencies, and- the success of a particular 'agency depends upon the character and business enterprise of the agent and the location of the agency’s establishment, with reference to the number of persons or establishments capable of undertaking an agency of this kind in a given locality, and that damages-.for breach of contract can not be estimated in money, because the plaintiff’s injury is not confined to loss of sales, but includes loss of commercial prestige, loss of custom, and loss of those advantages which are the natural accretion of a substantial business, which would result from the agent abandoning his contract with the plaintiff and engaging to sell the patterns of a competitor; that the damage is irreparable, because it is unable to procure, in ■the vicinity of the defendants’ premises, an equally competent agency for the sale of its products. Insolvency was neither alleged nor proved. Nor did it appear at the hearing that, the plaintiff -was not able to procure other merchants to sell its products, or .that-the defendants possessed any^ special facilities superior to .other merchants in the town for the sale of their wares. We think .thé. case'as' made by the evidence is controlled by the cited code section, and by the case: of' Hammond v. Georgian Company, 133 Ga. 1 (65 S. E. 124).

Judgment reversed.

Beck, J.,'absent. The other Justices conceal>;