H & R Block, Inc. v. Asher , 231 Ga. 780 ( 1974 )

Mobley, Chief Justice.

This appeal by H & R Block, Inc., is from the dismissal of its complaint against Paul H. and Mary F. Asher, for failure to state a claim on which relief could be granted, and from the denial of a temporary injunction.

The appellant sought to enforce certain provisions of a franchise agreement between Block of Georgia, Inc., and the Ashers. It was alleged that the Ashers terminated this agreement on September 15, 1972, and since that date have operated their business of preparing tax returns in Glynn County in violation of the restrictive covenant of the agreement.

Submitted November 16, 1973 Decided February 18, 1974 Rehearing denied March 7, 1974. Fendig, Dickey, Fendig & Whelchel, Anthony D. Smith, for appellant. Q. Robert Henry, for appellees.

The appellant’s complaint alleged that on July 31, 1970, all franchise agreements held in the name of H & R Block of Georgia, Inc., were assigned to it. The complaint alleged that copies of the franchise agreement and the assignment were attached to the complaint. The franchise agreement of the Ashers with Block of Georgia, Inc., was dated July 2, 1965. The assignment by Block of Georgia, Inc., to H & R Block, Inc., does not list the franchises by name, but only by the franchised areas and dates. The only Glynn County franchise agreement listed is dated May 21, 1965.

Where a party relies on a written instrument as the basis of an action, and attaches a copy of the instrument as an exhibit, the facts shown in the exhibit will prevail over the allegations of the party in the pleading. Vandiver v. Endicott, 215 Ga. 250 (109 SE2d 775); Scenic Heights Development Corp. v. Harry; 219 Ga. 253 (1) (132 SE2d 711); Columbia Valley Recreation Center v. Massie, 223 Ga. 151 (1) (154 SE2d 215); Lansky v. Brannon, 225 Ga. 378 (169 SE2d 125).

In the brief for appellant it is stated that the discrepancy in dates in the written instruments on which the appellant relies was raised in argument on the motion to dismiss. It appears that there was no offer to amend to show any other assignment to the appellant of the franchise agreement of the Ashers.

The complaint of the appellant affirmatively shows that it has no standing to enforce the restrictive covenant of the Ashers’ franchise agreement, and it was not error to deny temporary injunction and to sustain the motion to dismiss the complaint.

Judgment affirmed.

All the Justices concur, except Gunter and Ingram, JJ., who dissent.