Friedman v. Goodman

• Court: Georgia Supreme Court
• Writing for the Court: QUILLIAN; All the Justices concur, except DUCKWORTH
• Citation: Friedman v. Goodman, 151 S.E.2d 455, 222 Ga. 613 (Ga. 1966)
• Decision Date: 06 October 1966
• Docket Number: No. 23539,23539
• Parties: A. A. FRIEDMAN et al. v. Jane R. GOODMAN et al.

Page 455

151 S.E.2d 455

222 Ga. 613

A. A. FRIEDMAN et al. v. Jane R. GOODMAN et al.

No. 23539.

Supreme Court of Georgia.

Oct. 6, 1966.

Rehearing Denied Oct. 20, 1966.

Syllabus by the Court

1. Where one cotenant, without authority from his cotenants, executes a lease under seal for such cotenants, the latter are not bound, and until they become bound, the contract signed by the other cotenant for them lacks the element of mutuality between them and the lessee, and the lessee's holding is to be considered as a tenancy at will.

2. A tenant in common with another can not give to another exclusive possession of the jointly owned property, except by such joint owner's consent.

Mrs. Jane R. Goodman, Mrs. Lillian R. Simon, Mrs. Bobby R. Moss and Mrs. Rose S. Harkins brought suit against A. A. Friedman and H. E. Friedman, trading as A. A. Friedman Company, in Richmond Superior Court on a certain lease contract. During the pendency of the suit Mrs. Harkins died and the Georgia Railroad Bank & Trust Company qualified as her executor and was made a party plaintiff in her stead. The suit was to recover rent for the ground floor of a described building in the City of Augusta for the period of time extending from January 12, 1961, to January 12, 1962, though under the terms of the lease the building was rented for ten years. The suit on which the plaintiffs predicated their right to recover was solely upon the premise that they had fully performed the lease contract. The petition, among other allegations, contained the averments: 'that plaintiffs are the owners of the property hereinafter described * * *'; 'that plaintiffs have duly performed all the conditions of said lease on their part.'

The contract attached as an exhibit and a part of the petition contained the provisions: 'the leased premises shall be in the exclusive possession of the tenant * * *; the lessee is hereby granted the privilege of subletting the leased premises in whole or in part * * *'; and that the lessee would have the right to install a whole new front on the building, removing the front that then existed.

The defendants never took physical or manual possession of the building but the plaintiffs gave them the keys to the building and, at the suggestion of the plaintiffs made through their agent, undertook almost immediately after the contract was entered into to sublease the building to another, but did not succeed. Before the time arrived for the defendants to enter the building they refused to take possession because, as they contended, the building was not safe for occupancy. The plaintiffs made repairs on the building but the defendants were never satisfied that it was in satisfactory condition and refused to enter into possession. The defendants having failed and refused to pay the rent, the plaintiffs instituted the suit on the rental contract. The defendants filed an answer in which they alleged they were constructively evicted from the building because the plaintiffs never placed it in a state of repair necessary to the use for which it was rented.

The defendants also filed a cross action praying specific performance of the contract. Later they amended their answer, struck the cross action and the admission contained in their original answer that the plaintiffs were the owners of the building. The amendment alleged: that the lease sued upon was executed by Dora S. Rubenstein (the predecessor in title of Mrs. Goodman, Mrs. Simon and Mrs. Moss) and Rose S. Harkins as lessors on March 23, 1960; that on that date Rose S. Harkins did not own any interest in the real estate described in the lease; that Rose S. Harkins by deed dated November 17, 1954, had conveyed all her interest in the real estate to Harkins Realty Company, a Georgia corporation; that on the date of the lease the real estate was owned jointly by Dora S. Rubenstein and Harkins Realty Company, as tenants in common; that in 1961 the Harkins Realty Company changed its name to Harkins Corporation; that because of these facts the defendants became tenants in common with the Harkins Corporation of the property described in the lease, with Harkins Corporation being entitled to joint possession with the defendants. Having filed this amendment, the defendants renounced the lease on the ground that the plaintiffs did not have authority to lease the building or power to perform its covenants and that for this reason it was invalid; they so informed the plaintiffs and had the record of the lease canceled. The plaintiffs did not specifically reply to the amendment, but filed an amendment in which the defendants' allegations as to ownership of the rented building were in substance admitted. The plaintiffs' amendment reads: that among the assets of Rose S. Harkins which passed to her executor is her interest in the lease agreement between Dora S. Rubenstein and Rose S. Harkins, as lessors, and the A. A. Friedman Company; that on June 30, 1964, the Harkins Corporation was dissolved as a corporation and all its assets, including any interest it might have had in the leased premises, passed to its stockholders; that all of the interest of the Harkins Corporation in and to the leased premises passed under the resolution of dissolution of the corporation to the Georgia Railroad Bank & Trust Company and on July 2, 1964, the trustees of the corporation executed and delivered to the Georgia Railroad Bank & Trust Company a deed conveying all of the corporation's interest in the premises.

The case proceeded to trial. There was conflicting evidence as to the condition of the building, but the evidence as to the ownership of the building, both at the time the lease contract was executed and during the period for which the plaintiffs asserted the right to collect rent, was not in dispute and conclusively showed the title to the rental premises was not in the plaintiffs but that the building was owned by the Harkins Corporation and Dora S. Rubenstein, as tenants in common. The plaintiffs introduced a deed dated July 2, 1964, from the Harkins Corporation and its directors and trustees conveying to Georgia Railroad Bank & Trust Company, as executor of the will of Rose S. Harkins, a one-half undivided interest in the leased property, reciting the corporation's acquisition of the one-half interest from Rose S. Harkins to Harkins Realty Company, later the Harkins Corporation, by deed dated November 17, 1954, reciting the dissolution of the Harkins Corporation on June 30, 1964, reciting the acquisition by Georgia Railroad Bank & Trust Company, as executor of Rose S. Harkins, of all other outstanding stock in the Harkins Corporation, and that the assets of the estate of Rose S. Harkins were ample to pay all outstanding debts of the Harkins Corporation; the deed being filed for record July 23, 1964 and recorded. A witness for the defendants testified in substance that he was a licensed attorney; that he made a title examination of the rented premises on March 23, 1964, and found: premises on March 23, 1960, there was a one-half interest in the property owned by the Harkins Corporation (then Harkins Realty Company) and one-half interest owned by Dora S. Rubenstein; that on the 10th of April, 1964, a one-half interest was in the name of the Harkins Corporation and a one-half interest was held by three individuals, Mrs. Goodman, Mrs. Simon and Mrs. Moss. There was no evidence that the Harkins Corporation authorized or ratified the rental contract or was advised of its execution or existence.

The verdict was in the plaintiffs' favor, the defendants' motion for new trial complaining that the verdict was not supported by evidence and on several other grounds was overruled. The Court of Appeals affirmed the trial court's judgment overruling the motion for new trial and this court granted the defendants' certiorari.

Thurmond, Hester, Jolles & McElmurray, Cornelius B. Thurmond, Jr., Augusta, for appellants.

Hull, Towill & Norman, R. Lawton Jordan, Congdon & Williams, Augusta, for appellees.

QUILLIAN, Justice.

1. In the present suit upon a lease or rental contract the plaintiffs had the burden of proving that they performed the contract according to its terms, or for some legal reason such performance on their part was as a matter of law excused. Code § 20-1101; Bennett v. Burkhalter, 128 Ga. 154, 57 S.E. 231. The plaintiffs recognized this principle and alleged in the petition that they had 'duly performed all the conditions of said lease on their part.'

It is further a rudimentary principle that where the plaintiffs contract to perform covenants that are impossible, not because of an act of God or the conduct of the defendants, the failure to perform such covenants is as fatal to the plaintiffs' right to recover as a breach of the contract for any other reason. In the case of Northington Co. v. Farmers Co., 119 Ga. 851(7), 47 S.Ed. 200, this court held: 'If the vendor sold to a third person and thereby disabled itself to convey according to the terms of the contract, it would be liable in damages.' Field v. Martin, 49 Ga. 268 (2); Cooley v. Moss, 123 Ga. 707(1), 51 S.E. 625; Mobley v. Lott, 127 Ga. 572, 56 S.E. 637.

The lease contract sued upon contained the provisions: 'the leased premises shall be in the exclusive possession of the tenant * * *; the lessee is hereby granted the privilege of subletting the leased premises in whole or in part * * *'; and that the lessee would have the right to install a whole new front on the building, removing the front that then existed. While the petition as originally drafted contained the averment that the plaintiffs were the owners of the rented building, a later amendment alleged that one of the plaintiffs, Mrs. Harkins, through her executor, Georgia Railroad Bank & Trust Company, acquired her interest in the building subsequent to execution of the lease contract and after the expiration of the period during which the rent sued for accrued. The plaintiffs...