Coffee System of Atlanta v. Fox , 227 Ga. 602 ( 1971 )

227 Ga. 602 (1971) 182 S.E.2d 109

COFFEE SYSTEM OF ATLANTA
v.
FOX et al.

26497.

Supreme Court of Georgia.

Argued April 14, 1971. Decided May 6, 1971.

Shoob, McLain & Jessee, Jerry T. Hinson, for appellant.

Robert E. Born, for appellees.

GRICE, Justice.

This appeal is from the denial of a temporary injunction and dissolving a restraining order in a suit seeking to prevent an employee from allegedly violating a restrictive covenant ancillary to an employment contract. For former appearance, see Coffee System of Atlanta v. Fox, 226 Ga. 593 (176 SE2d 71).

The restrictive covenant prohibited the employee from engaging in certain competitive activities during the term of the contract and for a one-year period following its termination. The employment agreement was terminated on November 14, 1969.

The hearing at which the injunctive relief was sought to be continued was held on November 19, 1970, more than one year after employment was terminated.

Under the circumstances, the issue as to whether to continue the injunction has become moot. The act sought to be enjoined is now a completed act and therefore an injunction could not issue. For collation of cases, see West Georgia Digest, Injunction § 22.

This result must obtain even though during most of the one-year period the parties were in litigation in the same case. However, the litigation did not toll the one-year period so as to provide additional time for enjoining the employee. Such an extension would in effect rewrite the one-year feature of the agreement. Courts do not make contracts for the parties. The contingency of litigation could have been provided for in the agreement, but was not.

From the foregoing, it is apparent that due to mootness there is no issue involved in this appeal.

Appeal dismissed. All the Justices concur, except Hawes, J., who dissents.