Opinion
33933.
DECIDED JUNE 4, 1952. REHEARING DENIED JULY 11, 1952.
Complaint; from Fulton Superior Court — Judge Etheridge. November 14, 1951.
Grace W. Thomas, J. Walter LeCraw, for plaintiff in error.
Herbert Johnson, Henry M. Hatcher Jr., R. R. Rhudy, contra.
1. Where, on the hearing of demurrers, the trial court sustains certain special demurrers to the defendant's answer and orders certain paragraphs of the answer stricken, to which judgment exceptions pendente lite are duly filed and upon which error is assigned in the bill of exceptions before this court, but it appears from the record in the case that the trial court permitted the introduction of evidence upon all of the issues raised by the paragraphs stricken from the answer on demurrer, this court will not disturb the trial court's judgment striking the designated paragraphs even assuming that such judgment was erroneous where it is in no wise made to appear that the defendant was harmed thereby. Greenwood v. Greenwood, 44 Ga. App. 846 (1) ( 163 S.E. 316).
2, 3. There is no merit in either of the two special grounds of the motion for a new trial.
4. Under the theory upon which the case was brought, assumpsit as for money had and received, the verdict was well within the range of the proof and authorized by the evidence.
DECIDED JUNE 4, 1952 — REHEARING DENIED JULY 11, 1952.
George J. Long brought an action against Homer C. Hayslip in the Civil Court of Fulton County. In his petition as finally amended, he alleged substantially the following: The defendant is indebted to the plaintiff in the amount of $12,307.85. On or about January 6, 1950, the defendant proposed to the plaintiff a plan wherein the plaintiff would lend money to the defendant to enable him to repurchase a patent and trademark, which the defendant had previously owned, and to enable him to acquire stock in Cleaners Control Systems Incorporated, a former licensee under the patent and trademark, so as to give the defendant control of Cleaners Control Systems. The defendant represented to the plaintiff that it would be necessary to acquire control of Cleaners Control Systems in order to stop infringement of the patent by that corporation and to obtain the trade and business then being enjoyed by the corporation. It was then proposed further that the defendant would sell to the plaintiff an interest in the patent and trademark and the amount of the plaintiff's loans to the defendant would be applied on the purchase price of such interest; and that upon the establishment of a business by the defendant to manufacture and market the patented product, the plaintiff was to receive an interest in such business equal to that held by the defendant. On January 25, 1950, the defendant repurchased the patent and trademark and immediately sold a one-half interest in the patent to Talmadge Black, and since the plaintiff had advanced him considerable money, the defendant offered to sell the plaintiff a one-half interest in the trademark for the sum of $10,000. Subsequently, on April 10, 1950, the plaintiff and the defendant entered into the following written agreement for the sale and purchase of this interest in the trademark: "This agreement entered into this 10 day of April, 1950 by and between Homer C. Hayslip, of Fulton County, Georgia and George J. Long, of DeKalb County, Georgia.
"Witnesseth: Whereas, Homer C. Hayslip is the owner of the trade name of TEXTAG, application for registration of which has been filed in the United States Patent Office, under serial number 54107092, and Whereas, Homer C. Hayslip desires to enter into an agreement to sell an interest in said trade name, and Whereas, George J. Long desires to enter into an agreement to buy an interest in said trade name,
"Now, therefore, in consideration of the agreement of George J. Long to buy, and other good and valuable consideration, Homer C. Hayslip hereby agrees to sell, assign and transfer unto the said George J. Long, his heirs and assigns, on the 10th day of August, 1950, for the total sum of Ten Thousand ($10,000) Dollars, and other valuable consideration, Five Thousand ($5,000) Dollars of which is to be paid in cash and the balance by note payable twelve (12) months from date at six (6%) percent interest, an undivided interest in the above-described trade name, to wit, Textag, and all copyrights which now exist or may be hereafter acquired, developed, used or applied to the Hayslip system of identification and work-flow control for laundries and dry cleaners for the territory of the United States of America, whether registered or nonregistered, or any other system of identification control which may be now or hereafter developed by the seller, said undivided interest to be held and enjoyed by the said George J. Long, his heirs and assigns for the full life of the trade names, trademarks, and copyrights, and improvements thereto, with the same standing, rights, and privileges as the undivided one-half interest in said trade names, trademarks and copyrights retained by Homer C. Hayslip.
"It is agreed, that said sale shall provide for an agreement that neither party shall have the right under any condition or at any time to issue any rights, franchises or licenses of the trademark Textag, or any other trade name, trademark or copyright to be conveyed by said agreement without the written consent of the other party hereto.
"It is further agreed, that said sale shall provide for an agreement that neither the trademark Textag nor any other trade name, trademark or copyright conveyed hereby shall be used separately from patent number 2,455,007 known as the Hayslip System or any successor system thereto, and patent number 2,455,007, or any successor system thereto, shall not be used separately from the tradename Textag or any other trade name, trademark or copyright conveyed hereby, except by agreement of all patent, trade name, trademark and copyright holders.
"It is further agreed, that said sale shall provide for an agreement that no rights, franchises or licenses for the use of patent number 2,455,007, or any improvements thereto, shall be issued by Homer C. Hayslip without the written consent of George J. Long, his heirs or assigns.
"It is further agreed, that said sale shall provide for an agreement that neither party hereto his heirs or assigns shall sell his interest in the trademark Textag and the other trade names, trademarks or copyrights herein referred to to any third party without first offering said interest to the other party hereto, his heirs or assigns, at the same price and on the same terms as offered to said third party.
"It is further agreed, that said sale shall provide for an agreement that neither party hereto shall enter into the manufacture or sale of any articles in competition with articles manufactured under the patents, trade names, trademarks and copyrights herein referred to.
"It is further agreed, that in said sale Homer C. Hayslip will warrant to George J. Long, his heirs and assigns that he, Homer C. Hayslip, is the sole and exclusive owner of the trademark Textag and that there are no outstanding franchises, contracts or agreements conditioning his free and uncontrolled use of said trademark and that he had the full, complete and uncontrolled right to make the sale and assignment proposed herein.
"Now, therefore, in consideration of the foregoing agreement of Homer C. Hayslip to sell, and other good and valuable consideration, George J. Long agrees to buy from the said Homer C. Hayslip an undivided one-half interest in the trademark Textag and the other trade names, trademarks, and copyrights set forth, at the price and upon the terms and upon the conditions set forth in this agreement.
"In witness whereof, the parties hereto have set their hands and seals this 10 day of April, 1950.
"/s/ Homer C. Hayslip (Seal)
"/s/ Geo. J. Long (Seal)
"Signed, sealed and delivered this 10th day of April, 1950, in the presence of: /s/ Betty Dwight, Notary Public, Fulton County, Georgia; My commission expires Oct. 10, 1953."
It is further alleged in the petition, that, acting on the faith of this contract and the proposals and representations of the defendant, the plaintiff has advanced personally to the defendant the sum of $6362, as shown by an exhibit attached to the petition listing the individual advances; and also that, acting on the faith of the contract and the proposals and representations of the defendant set out in the petition, the plaintiff at the request of the defendant has paid the defendant's creditors the sum of $475.35 for merchandise and services rendered to the defendant, it being agreed by the parties that this money was advanced by the plaintiff as a loan to the defendant, and the details of these advances were set forth in an exhibit attached to the petition; and that, acting on the proposals and representations of the defendants set out and at the request of the defendant, the plaintiff agreed to purchase and on or about February 6, 1950, did purchase from D. H. Waddington 150 shares of stock of Cleaners Control Systems Inc. for the sum of $1,250; and at the time of the purchase of this stock, which was negotiated and consummated by the defendant, the defendant personally guaranteed to the plaintiff that he would be repaid said sum by the company to be organized by him and that the plaintiff would lose no money thereby. It is further alleged that, acting on the faith of the contract, proposals, guaranties, and representations of the defendant set out, the plaintiff at the request of the defendant has paid the sum of $643 in litigation expenses in the case of Cleaners Control Systems Inc. v. Ross M. Goddard Sr. et al. in the Superior Court of Fulton County, the defendant personally guaranteeing to the plaintiff the repayment to the plaintiff of all sums so advanced. The particulars of these payments were also included in an exhibit attached to the petition. It is also alleged that, acting on the faith of the contracts, proposals, guaranties and representations of the defendant set out, the plaintiff on March 8, 1951, at the request of the defendant, purchased for the sum of $4200 from Cleaners Control Systems Inc. certain merchandise itemized in an exhibit attached to the petition; and at the request of the defendant the merchandise was turned over to the defendant, with the exception of the Venetian blinds and two large gas heaters, which, with the defendant's permission, were retained by the plaintiff and sold for the sum of $210. After using the money of the plaintiff to re-acquire his patent and trademark and to establish himself in business with a profitable monopoly in the laundry identification business, the defendant on or about March 15, 1951, repudiated his contract of April 10, 1950, and his agreements with the plaintiff set out in the petition and now refuses to sell the interest in the trademark as agreed. The stock of Cleaners Control Systems Inc. is now valueless. The plaintiff had received no remuneration for any of the moneys advanced by him. On March 20, 1951, the plaintiff demanded of the defendant that he return all money loaned and advanced to him by the plaintiff upon the representations of the defendant, and the defendant refused to repay the plaintiff. All representations, promises, proposals and guarantees were oral, except the contract of April 10, 1950, and the defendant's repudiation of the agreements was oral. By amendment the plaintiff credited the defendant with payments to him amounting to $412.50.
From the defendant's answer, as finally amended, the trial court, on demurrer, struck those portions of the following allegations which appear in brackets, to which action the defendant excepted pendente lite: The defendant admitted that he had repurchased the patent and trademark on January 25, 1950, and had immediately sold a one-half interest in the patent to Talmadge Black. The alleged sales agreement of April 10, 1950, which was in writing is alleged to be invalid and void for the following reasons: [(a) There was no meeting of the minds of the plaintiff and the defendant as the writing did not set forth the real agreement and intention of the parties, and it contained certain provisions which were unknown to the defendant and to which he did not agree and never assented. (b) The defendant's signature to the document was obtained by actual or constructive fraud and the defendant was thereby led to sign the document when it was not his agreement or his intention to agree to it in the terms therein set forth.] The alleged sales agreement is void for uncertainty and indefiniteness in that it purports to be an agreement to sell something not in existence and not even invented or developed and attempts to convey an interest in something which is not identified or described. The defendant did offer to sell the plaintiff a one-half interest in the trademark, but the price was $15,000 instead of $10,000 as alleged, but the plaintiff subsequently requested a reduction of the price to $10,000 on account of the plaintiff's expenditures to obtain control of Cleaners Control Systems Inc., and the defendant agreed to this modification between January 25, 1950, and April 10, 1950. For the purpose of reducing this oral agreement to writing, the defendant drew up shortly before April 10, 1950, and delivered to the plaintiff a typewritten form of contract setting forth that the defendant sold, assigned, and transferred to the plaintiff an undivided one-half interest in the trade name Textag and all copyrights thereto. This form which he submitted contained no provision that the plaintiff would be granted any right to control the use of the patent or to control any rights, franchises or licenses for the use of the patent, and it was not the intention of the defendant to have any such clause included in the sales contract between him and the plaintiff. When the defendant delivered his written proposal to the plaintiff, the plaintiff stated to him that he would study the proposal and let him know later if it was all right. [Shortly thereafter, at about 9 o'clock on or about April 10, 1950, the defendant went to the office of Mr. Henry M. Hatcher, who was representing the defendant in litigation in the U.S. District Court, involving infringement of the defendant's trademark and patent, and the defendant had the utmost confidence in this attorney by virtue of their relationship as attorney and client. The attorney announced to the defendant that he had the contract between the defendant and the plaintiff ready for the defendant's signature, and handed him the document. The defendant started to read the document, which was in three typewritten pages, and the attorney declared that he had to be in court within ten minutes and there wasn't time for the defendant to read the document, and that it was the same as the proposed contract which the defendant had given the plaintiff except that he, the attorney had rewritten the first part to give it proper legal phraseology. The plaintiff was present, standing beside the attorney at the time and heard or could have heard this representation made to the defendant. Because of his confidence in the attorney, the defendant believed and relied upon the representation made by the attorney, and on account of his urging him to do so, the defendant signed the contract without reading more than the first portion of the first page. Since that time the defendant has discovered that the attorney was acting in the interests of the plaintiff and considered his obligation to the plaintiff to be higher than his obligation to the defendant, and that since that time the attorney has declared that he was really acting primarily as the plaintiff's attorney, and these facts were not known to the defendant at the time he signed the contract.] Since the time of the signing of the written agreement, the defendant has discovered that the contract contained an agreement that the defendant was not to issue any rights, franchises, or licenses for the use of the patent, or any improvements thereto, without the consent of the plaintiff, his heirs, or assigns; that this provision was not a part of the agreement between the plaintiff and the defendant and the defendant never agreed or assented to it. The defendant owned only one-half of the patent, the other half being owned by Talmadge Black, and the defendant could not transfer any control of his own half interest without Mr. Black's consent, which was known to the plaintiff, and Mr. Black did not and would not give such consent for such control of the patent to be placed in the plaintiff's hands. [The defendant is perfectly willing to stand by his agreement as to the sale of a one-half interest in the trademark to the defendant for $10,000; and he has not repudiated this agreement. The defendant has informed the plaintiff and the plaintiff's attorney, Mr. Hatcher, several times between August 1, 1950, and the time of the defendant's answer that he stands ready to abide by that agreement, but he has never agreed and will not agree to give the plaintiff the right to control the issuance of franchises or licenses for the use of the patent.] The defendant points out that the written agreement not only conveyed to the plaintiff a one-half interest in the trademark but also a similar interest in any and all trade names, trademarks and copyrights which now exist or may be hereafter acquired, developed, used or applied to the Hayslip system of identification and work-flow control for laundries and dry cleaners and shows that that clause purports to sell something not yet in existence, neither identified nor identifiable and the scope of the language is so vague and uncertain as to render the agreement void and unenforceable. However, the defendant alleges that even though the alleged written contract was void and unenforceable, the oral contract between the plaintiff and defendant to sell and purchase the one-half interest in the trademark for $10,000 is valid and the defendant stands ready and willing to abide by that agreement. In March, 1951, after the defendant had urged the plaintiff many times to go ahead with the original oral agreement the plaintiff and his attorney presented the defendant with a proposed bill of sale which contained the objectionable provisions with reference to the control of the issuance of franchises and licenses for the use of the patent and therefore the defendant refused to sign the document. [In refusing to sign the proposed bill of sale, the defendant reiterated his readiness and willingness to abide by his original oral agreement to sell the plaintiff a one-half interest in the trademark Textag.]
Upon the trial of the case, the jury returned a verdict for the plaintiff in the sum of $10,446.35 principal and $365.62 interest. The defendant's motion for a new trial, based on the usual general grounds and two special grounds, was overruled and he excepted.
1. Headnote 1 is self-explanatory and requires no further elaboration.
2. In special ground 1 (numbered 4) error is assigned upon the following extract of the court's charge to the jury: "If you find that there has been a mistake in the execution of the written contract in this case or for any other reason the written contract is not enforceable, I charge you that this fact would not preclude the plaintiff from a recovery in this suit, but he is entitled to recover from the defendant all the money he has paid to him or for his benefit at his request and the value of all merchandise turned over to him on the faith of the contract," on the grounds that the extract is not a correct statement of the law applicable to the case, was not authorized by the evidence, was confusing and misleading to the jury, and contradictory of the following extract of the court's charge: "The defendant, on the other hand, contends that he has never refused to go through with the contract, that he has always been ready, willing and able to go through with the contract, but that the plaintiff has attached other conditions to it not agreed to and not contained in their previous agreement and that he did refuse to sign a certain bill of sale presented to him for these and other reasons which have been set out but that they did not amount to a repudiation of the contract, that he is still willing — I believe is the contention of the defendant — to go through with the contract. He states that for that reason the verdict should be for the defendant. Should you believe from all the evidence that the contentions of the defendant are true, then you could find a verdict for the defendant, which would have the effect of leaving them as they were before this suit was filed, with the defendant still in position to be made to go through with the contract according to his statements here to sell the half interest and so on." Under the view which we take, that the action was brought and tried upon the theory of an action in assumpsit for money had and received, which will be illustrated more fully in our discussion of the general grounds in division 4 of this opinion, the extract complained of was not error for any reason assigned.
3. In special ground 2 (numbered 5), error is assigned upon the following portion of the court's charge: "In considering the case, gentlemen, the plaintiff in general contends that he had a certain contract with the defendant, that on the strength of that contract he made certain advances to the defendant, that he paid other bills for the defendant, that he otherwise, as you will remember the testimony, expended money for the defendant's benefit and which the defendant agreed to repay or would be treated as payment on the contract to purchase the half interest in the trademark. He contends further — the plaintiff generally contends — that when the time came to go through with the sale and the transfer agreed to in the contract between the parties, that the defendant refused to go through with the contract and that he accepted that refusal and said, in effect, `all right, we will tear it up, forget it all and you give me my money back,'" on the ground that it was not a correct statement of the plaintiff's contentions, putting the contention of the plaintiff in such a manner as to prejudice the defendant and as to confuse and mislead the jury. The charge complained of is not subject to any of the criticisms assigned, and this is especially apparent when the charge as a whole, and the nature of the action, are considered.
4. Under the evidence, the jury was authorized to find that the defendant induced the plaintiff to advance to him or to lend to him the various sums of money which the plaintiff paid out for the defendant's benefit under the agreement that the defendant would sell him that interest in the trademark and/or patent as is indicated in the written contract of April 10, 1950, which is set out in the statement of fact preceding this opinion; and to find that the interest in the trademark which the defendant contended he was to sell the plaintiff was not the agreement; and the jury was further authorized to find that upon the defendant's refusal to comply with the agreement to sell the plaintiff the interest in the trademark, which they found to be the true interest agreed upon, that it was mutually agreed between the plaintiff and the defendant that the whole transaction, made up of the various oral agreements and the written agreement, was terminated and rescinded; and that under these circumstances the plaintiff was entitled to have all the money advanced, lent to, or paid out by the plaintiff for the benefit of the defendant, returned to him, as the purpose for which the plaintiff had parted with his money had failed. Holtsinger v. Beverly, 53 Ga. App. 614, 618 ( 186 S.E. 776); McCay v. Barber, 37 Ga. 423; Minor v. Ozier, 84 Ga. 476 ( 10 S.E. 1088); Herrington v. City of Dublin, 50 Ga. App. 769 ( 179 S.E. 845). The suit was not brought for the breach of any one or more of the various contracts, either oral or written, but on the theory of assumpsit for money had and received by the defendant, which, under the principles of natural justice, he was not entitled to retain, and whether or not any one or more of the contracts, either oral or written, contained unenforceable provisions was immaterial. The verdict was well within the range of the proof and was authorized.
For the foregoing reason the trial court did not err in overruling the motion for a new trial.
Judgment affirmed. Gardner, P.J., and Townsend, J., concur.