dissenting.
In my opinion, Collins v. Storer Broadcasting Co., 217 Ga. 41, supra, is not controlling. In the instant case the defendant declared the contract forfeited. Article XIV of the agreement is void because it is in restraint *457of trade. The defendant can obtain no relief of any kind under it and is not required to do so as a condition precedent to the plaintiff’s rights in the premises. The defendant acted without authority under an illegal provision of the contract. The ruling in Collins, supra (p. 51), to the effect that “the employer has neither taken nor threatened to take any action against the plaintiff by reason of the contract” does not mean anything except that in the absence of such action by the company the plaintiff was not entitled to a decree of the cancellation of the contract under Code. § 20-504 and 'Code § 37-1410. It does not mean that the plaintiff in this ease cannot recover a money judgment because the defendant employer has taken no affirmative action on the contract against the plaintiff.
The provision at issue does not permit freedom to work for a competitor without a penalty. This is what makes it in restraint of trade. The Carson case was decided when this court well knew that Georgia was alone in its conclusion. Application for certiorari was denied by the Supreme Court in Carson v. Sun Life Assurance Co., 56 Ga. App. 164 (192 SE 241).
I am authorized to state that Judge Deen concurs in this dissent.