Lederle v. City of Atlanta , 164 Ga. 440 ( 1927 )

Hines, J.

1. Under a written contract between a contractor and tlie City of Atlanta, tlie consideration of which was the mutual covenants of the parties thereto, whereby the contractor was given the right to sell or dispose of the sludge accumulating' at the disposal plants of the city during the period beginning December I, 1916, and ending December 31, 1917, with the privilege to the contractor of renewing the contract foían additional period of five years under the same terms, which was done, and under which the contractor was to have the right and privilege of disposing of the annual output of sludge from said plants, and was to remove the sludge from the sludge-beds as directed by the officer or employee of the city having charge of said plants; and where the city entered into said contract for the purpose of saving the expense which it would have to incur in the removal of the sludge from the sludge-beds of its disposal plants; and where the contractor made improvements and invested capital which must necessarily have preceded the enjoyment of the license granted him under said contract, it became an agreement for a valuable consideration, and the licensee a purchaser for value. Hiers v. Mill Haven Co., 113 Ga. 1002 (39 S. E. 444) ; Harrell v. Williams, 159 Ga. 230 (125 S. E. 452).

2. Where, after the expiration of the period fixed by the renewal of the contract for the removal of the sludge from the sludge-beds of the disposal plants of the city, the contract was by mutual consent of the parties continued in force and effect upon the same terms and conditions as those prescribed in the written contract, but no time was fixed for its termination, the general council of the city could, by resolution and notice to the contractor, terminate said contract at any time. Electric Railway Co. v. Tennessee Coal Co., 98 Ga. 189 (26 S. E. 741). Thereafter the contractor would not have the right to remove sludge from Ike sludge-beds of the disposal plants of the city. Morgan v. Perkins, 94 Ga. 353 (21 S. E. 574) ; Warren v. Ash, 129 Ga. 329 (58 S. E. 858); Shippen Lumber Co. v. Gates, 136 Ga. 37 (70 S. E. 672); Jones v. Graham, 141 Ga. 60 (80 S. E. 7).

3. Where, during the term of the renewed contract and during the period when the contract was continued in force and effect by the mutual consent of the parties, sludge was removed by the contractor from the ■ sludge-beds and deposited upon the property of the city with its consent, the title of the contractor thereto was not lost merely by his failure to remove the same from the property of the city during the life of the contract. Johnson v. Truitt, 122 Ga. 327 (50 S. E. 135) ; Jones v. Graham, supra.

4. After the termination of the contract by the city, it was incumbent upon the contractor to remove the sludge taken from the sludge-beds and deposited upon the land of the city, within a reasonable time; and on his failure to do so, his interest in such deposits would cease and determine. McRae v. Stillwell, 111 Ga. 65 (36 S. E. 604, 55 L. R. A. 513) ; Goette v. Lane, 111 Ga. 400 (36 S. E. 758) ; Shippen Lumber Co. v. Gates, supra.

5. What would be a reasonable time for so doing would be a question of fact to be determined in the light of all the facts and circumstances of the case. Shippen Lumber Co. v. Gates, and Harrell v. Williams, supra.

6. Where a general demurrer to a petition is sustained, with leave to the plaintiff to amend, such ruling upon the demurrer fixes the law of the case; and unless the plaintiff by amendment sets up new facts which, when taken in connection with the allegations of the petition, make a ease which will entitle him to recover, a demurrer to the petition as amended, upon the ground that the judgment sustaining the former demurrer concluded the right of the plaintiff to recover, should be sustained. Kennedy v. Ayers, 164 Ga. 277 (138 S. E. 155).

7. Where in the original petition the only relief sought by the plaintiff was an injunction restraining the city from using sludge deposits at its disposal plants, and from interfering’ with him in removing said sludge-deposit beds, and for services rendered by him to the city, and where in his amendment to his petition the plaintiff alleged that the city had taken possession of 1950 tons of sludge which he had removed from the sludge-beds of the city’s disposal plants and deposited with the city’s consent upon its property, and of certain improvements put upon the city’s property and which the contractor had the right to remove under the contract, all of the value of $4,000, for which he prayed judgment, the plaintiff was not concluded by the judgment on the demurrer to his petition as it stood without amendment.

8. Applying the above rulings, the court below erred in sustaining the demurrer to the petition as amended, and in dismissing the action.

Contracts, 13 C. J. p. 324, n. 24 New.

Judgments, 34 C. J. p. 799, n. 79; p. 800, n. 84; p. 806, n. 17; p. 808, n. 38; p. 895, n. 32, 34; p. 1060, n. 12.

' Municipal Corporations, 28 Cyc. p. 640, n. 78; p. 657, n. 98 New; p 674, n. 20.

Pleading, 31 Cyc. p. 352, n. 52; p. 353, n. 54, 55.

No. 5782. June 30, 1927.

Judgment reversed.

All the Justices concur. George & John L. Westmoreland, for plaintiff. J. L. Mayson and G. 8. Winn, for defendant.