Featherston v. Reese, (No. 17153.)

• Decision Date: 14 February 1927
• Docket Number: (No. 17153.)
• Citation: 136 S.E. 811,36 Ga.App. 379
• Parties: FEATHERSTON. v. REESE et al.
• Court: Georgia Court of Appeals

36 Ga.App. 379

136 S.E. 811

FEATHERSTON.

v.REESE et al.

(No. 17153.)

Court of Appeals of Georgia,

Division No. 2.

Feb. 14, 1927.

(Syllabus by Editorial Staff.)

Error from Superior Court, Floyd County; James Maddox, Judge.

Action by C. N. Featherston against J. A. Reese and another. Defendants' demurrer to petition was sustained, and plaintiff brings error. Affirmed.

The plaintiff, C. N. Featherston, who was the owner of a certain building in the city of Rome, Ga., sought to recover for the breach of an alleged contract whereby the defendants, Julian A. Reese and W. G. Wright on October 4, 1924, agreed to rent the building for a period of 5 years at $255 per month. The alleged agreement contained the following stipulations:

"It is understood and agreed by and between the parties hereto that possession of the above-described premises shall be given to the parties of the second part as soon as party of the first part is in position to give occupancy. It is further understood by and between the parties hereto that the term of this contract shall begin 5 days after written notice is given to parties of the second part hereto that the said premises are ready for occupancy, and that said lease shall continue for a period of 5 years from the date of its beginning as herein provided for."

The petition alleged that at the time the parties entered into the agreement each understood that the property was in the possession of another as the plaintiff's tenant under a lease to expire about October 14, 1924. This tenant "had been given an agreement that he might remain in said building and occupy the same for either 30 or 60 days, " or longer, pending the completion of a new building which such tenant was then constructing. The petition further averred that, in view of these circumstances, it was contemplated between the plaintiff and the defendants that delivery of the premises would be made within a reasonable time, to "be determined by the completion" of the new building of the tenant then in possession. Before the happening of this event and while the old tenant was still in possession, the defendants, on December 31, 1924, served notice on the plaintiff "that they repudiated the lease and would not recognize themselves bound nor accept the premises." The plaintiff thereupon, in the exercise of diligence, succeeded in renting the premises to another for a term of 5 years at $225 per month, "which was $30 a month less, or $1,800 less for the term of lease, " than the plaintiff should have received from the defendants. This sum was alleged to be the amount of the plaintiff's damage. The instrument which the plaintiff claims to be his contract was signed by him through agents and by each of the defendants, under the seal of each party. Before delivery, "the same was brought by the plaintiff's agent and by the defendants to the plaintiff personally, and duplicate copies of said contract were then and there submitted to the plaintiff for his approval, with the request and suggestion by the plaintiff's agent and by the defendants that the plaintiff accept and approve the same. Plaintiff then and there, in the presence of his agent and in the presence of the defendants, examined the said contract, and wrote on each duplicate copy thereof the words 'Accepted and approved, ' and signed his name under such words [but without a seal], and thereupon retained a copy of the said contract himself, and delivered a duplicate thereof, with such words written thereon, to the defendants, and the defendants thereupon accepted such duplicate copy and allowed and permitted, and thereby agreed to plaintiff's retaining the other copy." The conclusion of the contract and the signatures thereto were as follows:

"In witness hereof, parties hereto have set their hands and affixed their seals, a duplicate copy being given to each of the parties hereto. C. N. Featherston, by His Agents Harvey-Given Co., by Hugh Given, Secty. [Seal.] Reese-Wright...