Opinion
27151.
SUBMITTED APRIL 11, 1972.
DECIDED JUNE 28, 1972.
Injunction. Houston Superior Court. Before Judge Hunt.
Nixon Nixon, Jon A. Nixon, John P. Nixon, for appellant.
Adams, O'Neal Hemingway, Thomas W. Talbot, H. T. O'Neal, Jr., for appellee.
A restrictive covenant entered into as a part of a franchise contract by which the franchisee binds himself in consideration thereof for a period of one year after the termination of such agreement not to engage in the sale of food or foodstuff to be carried away from or consumed off the premises or to carry on any operation the same as or similar to that commonly carried on under the name of the franchisor's business in any county in which there shall be located a unit of the franchisor's business referred to in such agreement where the only unit of the franchisor's business referred to in said agreement is "Unit No. 33 located in the Perry Plaza Shopping Center, Macon Street, Perry, Georgia," is, as a matter of law, a reasonable restriction to be imposed upon the franchisee, both as to territory and as to the time in which the competitive activity is prohibited so as not to be otherwise unreasonable. Swanson v. Kirby, 98 Ga. 586 ( 26 S.E. 71); Holloway v. Brown, 171 Ga. 481 ( 155 S.E. 917). It follows that the trial court did not err in enjoining the defendant who had operated a unit under franchise from the plaintiff, and who, after giving notice under the terms of the contract to terminate the same, commenced immediately after ceasing to do business under the franchise to engage in a competitive business at the same location selling food or foodstuffs to be carried away from or consumed off the premises in an operation similar to that carried on by the plaintiff, where the evidence showed that the plaintiff at the time maintained one of its units in another city within the same county as that wherein the defendant was engaged in business. While a distinction has been recognized by the courts between cases arising out of employment contracts and those arising out of contracts for the sale of a mercantile or other business (e.g. Rakestraw v. Lanier, 104 Ga. 188 (3) ( 30 S.E. 735, 69 ASR 154); and Kutash v. Gluckman, 193 Ga. 805 ( 20 S.E.2d 128)), in which latter category we deem this case to be, see generally, as to the proposition announced above and applied herein: Hood v. Legg, 160 Ga. 620 ( 128 S.E. 891); National Linen Service Corp. v. Clower, 179 Ga. 136 ( 175 S.E. 460); Burdine v. Brooks, 206 Ga. 12 ( 55 S.E.2d 605); Baxley v. Black, 224 Ga. 456 ( 162 S.E.2d 389); Mike Bajalia, Inc. v. Pike, 226 Ga. 131 ( 172 S.E.2d 676); Coffee System of Atlanta v. Fox, 226 Ga. 593 ( 176 S.E.2d 71).
Judgment affirmed. All the Justices concur.