Opinion
20507.
ARGUED JUNE 9, 1959.
DECIDED JULY 8, 1959. REHEARING DENIED JULY 23, 1959.
Injunction. DeKalb Superior Court. Before Judge Hubert. March 25, 1959.
David Eisenberg, James A. Mackay, Dan E. McConaughey, for plaintiff in error.
Israel Katz, contra.
The judgment of the court below restraining the defendant from engaging in the practice of his profession for three years within a two-mile radius of a named location was an abuse of discretion, for the reason that the contract was terminated within the trial period provided in the contract, and must be reversed.
ARGUED JUNE 9, 1959 — DECIDED JULY 8, 1959 — REHEARING DENIED JULY 23, 1959.
This is a suit by Dr. Eugene Howard against Dr. Jesse Hader, both of whom are dentists licensed to practice in the State of Georgia, seeking to enjoin the said Dr. Hader from practicing dentistry for three years within a radius of two miles of 1242 Glenwood Avenue, S.E., Atlanta, Georgia, in accordance with certain restrictive covenants contained in an agreement between the parties. The petition alleged that Dr. Howard required the services of another dentist to help him in his dental practice; that, around the first of October, 1958, he entered into discussions with the defendant relative to hiring him as an assistant; that, on or about November 5, 1958, the parties entered into an agreement, which contained the restrictive covenants here sought to be enforced.
The contract, which is attached to the petition, provided, in so far as is material here, in substance that the defendant would receive as compensation 60% of the gross receipts for professional services rendered by him, but guaranteed him $200 per week. It is then provided that Dr. Hader would refrain from practicing dentistry, "within an area of two (2) miles radius of 1242 Glenwood Avenue, S.E., Atlanta, Georgia, during the time agreement remains in force and for a period of three (3) years from the date of the dissolution."
The agreement then provides: "A 6 month trial period is agreed to at any 3-month period, books will be looked at to check indebtedness under the above agreement. If expenses are not covered by Jan. 1, 1959, other arrangements can be made."
The contract then provides that either party may withdraw from the agreement in Part I upon service of ten days' notice to the other party prior to such withdrawal, and the obligations of both parties under Item I shall cease. The restrictions of Item II shall bind Dr. Hader whether the dissolution is at his or Dr. Howard's choice.
It is then alleged that in January, 1959, Dr. Howard terminated Dr. Hader's services under the agreement, and that thereafter, Dr. Hader opened an office next door to 1242 Glenwood Avenue, S.E., and began to engage in the practice of dentistry in violation of the restrictive covenants contained in the agreement above set out.
The prayers of the petition were to enjoin the defendant from practicing dentistry in violation of his agreement, for the recovery of damages, and for other relief.
After a hearing, an order restraining Dr. Hader was entered, which restrained him from engaging in the practice of dentistry in violation of the agreement above set out. The exception here is to this judgment.
Both parties to this case have argued at length the reasonableness or unreasonableness of the restrictions placed upon the right of the defendant to practice his profession contained in the agreement here under consideration. In the view we take of this case, we do not reach this question. See, in this connection, however, Rakestraw v. Lanier, 104 Ga. 188, 189 ( 30 S.E. 735, 69 Am. St. Rep. 154). The agreement itself provides the answer to all questions involved in this case. It is provided in a portion of the contract, which is handwritten and which under the evidence was included in the contract before it was signed, as follows: "A 6 month trial period is agreed to at any 3 month period, books will be looked at to check indebtedness under the above agreement. If expenses are not covered by Jan. 1, 1959, other arrangements can be made." This language, while, as stated in the brief of the defendant in error, it may leave something to be desired as to grammar, is clear and unambiguous. If it is to be given any meaning, it means that for a period of six months, both parties are on trial, and if, at the end of that time, either of them is not satisfied with their association, they can call the whole deal off. If there were any doubt or ambiguity as to the meaning of this language, the testimony of Dr. Howard himself would show the correctness of this conclusion. He testified: "So I finally wrote that in myself at his direction with the intent that the six months would be to see how we `hit it off' in our relationship together. The other part about the three months was just on a financial arrangement." Evidently the parties did not "hit it off" too well, and Dr. Howard terminated the agreement in less than three months from the date of its execution.
It is now contended that this six months' provision applied only to the financial arrangement between the parties, and that it did not apply to the restrictive covenants. There is no merit in this contention. The changing of the financial arrangements is provided for directly following the six months' provision, where it is provided that these arrangements can be reviewed and changed at the end of any three-month period. The six months' provision clearly refers to and was intended to refer to the entire contract, and within six months of its execution, the contract was terminated by action of the parties thereto, and the restrictive covenants were terminated with the rest of the contract and were no longer binding upon the defendant.
For the reasons stated above, the judgment of the court below restraining the defendant from the practice of dentistry in the area and for the time provided in the contract was an abuse of discretion, was error, and must be.
Reversed. All the Justices concur.