DEKALB COUNTY v. GEORGIA PAPERSTOCK COMPANY, INC. et al., 226 Ga. 369, 174 S.E.2.d 884 (1970)
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George P. Dillard, Herbert O. Edwards, Robert E. Mozley, for appellant.
This case is before this court upon appeal from the order of the Judge of the Superior Court of DeKalb County overruling the defendant's motion to dismiss the plaintiff's complaint for failure to state a claim upon which relief can be granted; overruling the defendant's motion to strike paragraph 5 of the plaintiff's complaint; granting the plaintiff's motion to dismiss the defendant's cross action and third-party complaint and dismissing the third-party complaint as to Fireman's Fund Insurance Company; and from the judgment overruling the motion to dismiss the defendant's cross complaint and restraining the defendant from proceeding in its cross action in a prior case in Fulton Superior Court.
Georgia Paperstock Company, Inc., filed suit against DeKalb County seeking to recover damages for breach of a contract allegedly entered into between the plaintiff and the defendant wherein the plaintiff agreed to purchase from the county and the county agreed to sell to the plaintiff "all of the waste paper corrugated boxes delivered in satisfactory condition for the use of the company at the plant of the company" to be located at a point convenient to the "DeKalb County service area." Under the contract the plaintiff agreed to pay to the defendant a stipulated price per net ton "based on the Chicago market on the 'high side,' " the price to be paid to be adjusted and determined on a quarterly basis, provided however, that in no event, or regardless of the market price quotation, would the company pay to the county less than $7.00 per net ton delivered, and further provide that the company would have 60 days from the beginning of the delivery of the material under the contract to building up the tonnage to the required minimum of 100 net tons per week, and thereafter "in the event the county is unable to deliver the weekly minimum tonnage during any calendar month after this 60-day period, the price for that month shall be $7.00 per net ton."
The county further agreed to deliver all the waste paper, cardboard corrugated boxes collected by the trucks of its sanitation department and "if possible" those boxes collected by independent contractors or agents, such boxes to be free and clear of all garbage and trash or other material "undesirable or unsuitable for use of the company."
2. The motion to dismiss was based on the alleged invalidity of the contract sued on, and it may be conceded that since the basis of the plaintiff's claim is solely breach of the contract if the contract was invalid and unenforceable for any reason no claim would be stated on which relief could be granted. DeKalb County contends that the contract is contrary to public policy in that (1) it constitutes an unlawful restraint of trade; (2) creates a debt beyond a year without a vote of the people if the damages contended for by the plaintiff could be incurred; (3) unlawfully binds the commission and future commissions in the exercise of their legislative function; (4) is unilateral; (5) is vague and indefinite, and (6) is without consideration.
3. The obligation which the plaintiff seeks to impose upon the county is not a debt within the meaning of the constitutional provision relied upon. Such obligation, if it in fact exists, arises, not by reason of the obligations of the contract, but by the reason of its alleged breach. The contract itself, if performed by both the parties, would never result in the county incurring an obligation to pay to the plaintiff any sum whatsoever, but on the contrary would give rise to an obligation on the part of the plaintiff to pay the county money. If in fact the contract has been breached by the county in any respect and if it is liable, therefore, to the plaintiff for damages on account of such breach in any proper measure, those damages and the obligation of the county to pay them, are not an indebtedness within the meaning of that term as used in the Constitution. City of Conyers v. Kirk & Co.,
5. The contract is not unilateral or vague and indefinite or without consideration. It is fundamental that "a promise of another is a good consideration for a promise." Code 20-304. Under the contract the plaintiff covenanted and agreed to "purchase from the county all of the waste paper corrugated boxes delivered in satisfactory condition for the use of the company," and the county agreed "to deliver all the waste paper cardboard corrugated boxes collected by the trucks of the sanitation department and if possible those boxes collected by its independent contractors or agents, to the plant of the company." (Emphasis supplied). These promises were not rendered vague or uncertain by the provision of the contract that the boxes "shall be free and clear of all garbage, trash or other materials undesirable or unsuitable for the use of the company." The contract recites that the company is a commercial enterprise engaged in the business of processing waste corrugated boxes and other like materials. What is suitable and satisfactory for the company's use constitutes a matter of evidence as to the customs and usages of the trade. Upon the trial of the case evidence as to such customs and usages would be admissible to show what waste paper corrugated boxes and other like materials were intended to be delivered under the contract. Branch, Sons & Co. v. Palmer,
Samuel L. Eplan, James A. Mackay, for appellees.
1970
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