holding that solicitation of competitor's customers is not itself tortious, even when combined with "preferential" pricesSummary of this case from U.S. Anchor Mfg., Inc. v. Rule Industries, Inc.
SUBMITTED APRIL 4, 1967.
DECIDED MAY 17, 1967. REHEARING DENIED JUNE 9, 1967.
Action for damages. Fulton Superior Court. Before Judge Shaw.
Glenville Haldi, for appellant.
Arnall, Golden Gregory, Cleburn E. Gregory, Jr., Jonathan Golden, for appellees.
The petition seeking to recover for malicious injury to plaintiff's business failed to state a cause of action under any theory.
SUBMITTED APRIL 4, 1967 — DECIDED MAY 17, 1967 — REHEARING DENIED JUNE 9, 1967 — CERT. APPLIED FOR.
Bert Parks and Joel Schor brought this suit to recover against Atlanta News Agency, Inc. and Edward Elson for malicious injury to plaintiff's business.
The petition alleged that the corporate defendant was a wholesale distributor of paperback books and magazines and that defendant Elson was its "chief operating officer and one of the major stockholders." Elson encouraged plaintiffs to open a book store and prevailed upon them to purchase books from the corporate defendant. On July 1, 1963, plaintiffs commenced operation of their book store in the City of Atlanta. The only allegation of any agreement or understanding between plaintiffs and defendants was as follows: "At the time your petitioners began to purchase their books from the defendant Atlanta News, Inc., they did so under the promise of Edward Elson that they would be granted the same privileges and advantages of the other similar customers, including normal trade credit, free promotional and advertising materials, delivery service, as well as a timely allotment of best selling books and other current items." Unknown to plaintiffs there was an agreement between the corporate defendant and its national suppliers of books and magazines to the effect that these suppliers would refuse to sell directly to any customer of the defendant. This agreement had the effect of denying plaintiffs access to any other practical source of supply for the merchandise upon which their business depended. In November, 1963, defendant Elson opened a retail book store known as the Lenox Square Book Store and located within a one-mile radius of plaintiff's store, in competition with plaintiffs. Also, the corporate defendant engaged in selling directly to high school students by the introduction of a "bookmobile," in competition with plaintiffs.
In October, 1963, defendants began to interfere with plaintiffs' business operations by: (a) withholding free promotional and advertising materials which were made available to other retail outlets; (b) withholding normal delivery of books to plaintiffs; (c) giving price discounts, which were not given to plaintiffs, to the Lenox Square Book Store; (d) suspending normal trade credit previously given plaintiffs; (e) repossessing books sent on consignment and failing to give plaintiffs credit therefor. On December 30, 1964, the corporate defendant, acting through Elson, demanded immediate payment by plaintiffs of approximately $6,000 due defendants on open account. On December 30 and 31, the corporate defendant sent employees to plaintiffs' store and physically removed "enough books to pay the outstanding account balance." These acts were done in furtherance of a plan to harass plaintiffs, force them out of business and eliminate competition, and plaintiffs were thereby forced to cease business operations on March 31, 1964.
Plaintiffs took their appeal from the trial court's judgment sustaining defendants' general demurrer to the petition.
A promise, to be enforceable, must be sufficiently definite as to both time and subject matter. McCaw Mfg. Co. v. Felder, 115 Ga. 408, 411 ( 41 S.E. 664). Where the corporate defendant's promise to furnish plaintiffs with a "timely allotment of best selling books and other current items," "normal trade credit," delivery service and advertising materials did not specify details as to the kind or quantity of the books and materials or the terms and amount of credit or when and where the goods were to be delivered and the period of time over which the promise was to be operative, the promise was too indefinite to be capable of enforcement. See Hart v. Georgia R. Co., 101 Ga. 188 ( 28 S.E. 637); Prior v. Hilton Dodge Lumber Co., 141 Ga. 117, 119 ( 80 S.E. 559); Weill v. Brown, 197 Ga. 328, 333 ( 29 S.E.2d 54); Gray v. Aiken, 205 Ga. 649, 653 ( 54 S.E.2d 587); Pierson v. General Plywood Corp., 76 Ga. App. 853, 856 ( 47 S.E.2d 605); Gunter Bros. Inc. v. Cooper Tire Rubber Co., 87 Ga. App. 626 ( 47 S.E.2d 744). Assuming arguendo that the promise to furnish books to plaintiffs had been sufficiently definite, yet there was nothing in the purported agreement which amounted to an obligation on plaintiffs' part to receive and sell them. In this respect the purported agreement was unilateral and, as to any unperformed portion of the agreement, unenforceable for want of mutuality. See Morrow v. Southern Express Co., 101 Ga. 810, 813 ( 28 S.E. 998); Harrison Garrett v. Wilson Lumber Co., 119 Ga. 6, 9 ( 45 S.E. 730); Huggins v. Southeastern Lime c. Co., 121 Ga. 311, 313 ( 48 S.E. 933); Chappell v. F. A. D. Andrea, Inc., 41 Ga. App. 413, 417 ( 153 S.E. 218).
It was not a tort merely to refuse to continue the business relationship with plaintiff where that relation was terminable at will. Nor was it a tort to engage in the retail sale of books in the same locale as plaintiffs, to enter into an agreement for preferential prices to the Lenox Square Book Store, or to solicit the trade of plaintiffs' customers. Pepsi Cola Co. v. Wright, 187 Ga. 723, 728 (3) ( 2 S.E.2d 73). The cases of Employing Printers Club v. Doctor Blosser Co., 122 Ga. 509 ( 50 S.E. 353); American Oil Co. v. Towler, 56 Ga. App. 866 ( 194 S.E. 223); and Ott v. Gandy, 66 Ga. App. 684 ( 19 S.E.2d 180) are distinguishable on their facts as the wrong in each of those cases arose from an unlawful combination, breach of contract, or inducement to another to breach a contract. The fourth division of Pepsi Cola Co. v. Wright, 187 Ga. 723, 728, supra, is not applicable, as no false representations or other unlawful means are involved here. "The policy of the common law has always been in favor of free competition. . . In the absence of prohibition by statute, illegitimate means, or some other unlawful element, a defendant seeking to increase his own business may cut rates or prices, allow discounts or rebates, enter into secret negotiations behind the plaintiff's back, refuse to deal with him. . ." Prosser on Torts (3d Ed.), p. 979. The petition failed to state a cause of action for malicious injury to plaintiffs' business by engaging in business in competition with plaintiffs or by refusing to continue to deal with plaintiffs. See also, Braden v. Haas, Howell Dodd, 56 Ga. App. 342, 347 ( 192 S.E. 508).
Moreover, allegations showing that defendants repossessed books sent to plaintiffs on consignment fail to state a cause of action for trespass on personal property. The term "consignment," used in a commercial sense, ordinarily implies an agency, and denotes that property is committed to the consignee for care or sale. See Sturtevant Co. v. Cumberland Dugan Co., 106 Md. 587 ( 68 A 351, 356); Edwards v. Baldwin Piano Co., 79 Fla. 143 (83 S 915, 918); Payne v. American Agricultural Chemical Co., 66 Ga. App. 596 (2) ( 18 S.E.2d 635). Construing the petition against plaintiffs, as we are required to do on general demurrer, it appears that the books in question were merely entrusted to plaintiffs as agents of the corporate defendant for the purpose of selling them, title remaining in the defendant. Under these circumstances the defendant was empowered to revoke the agency at will ( Code § 4-214 (1); Wheeler v. Pan American Petroleum Corp., 48 Ga. App. 378 ( 172 S.E. 826)) and to take possession of its books by any lawful means.
It was not error to sustain defendants' general demurrer to the petition, which failed to state a cause of action on any theory.
Judgment affirmed. Jordan and Pannell, JJ., concur.