Gay v. American Oil Co.
| Decision Date | 11 January 1967 |
| Docket Number | No. 42503,No. 1,42503,1 |
| Citation | 153 S.E.2d 612,115 Ga.App. 18 |
| Parties | Bertye P. GAY v. AMERICAN OIL COMPANY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
Where a lease provided for payment of rentals by checks to be mailed to the lessor on the first of each month, and the lessor irrevocably assigned a portion of the rentals to a bank to be applied on a note and constituted the bank her agent for collection of the assigned rentals, and by reason of the lessee's failure to attach proper postage to the envelope addressed to the lessor containing a check for the unassigned portion of the rental for one month the lessor sought to declare a forfeiture of the lease and dispossess the lessee, the forefeiture, if there was one, was waived by the acceptance of payment of the assigned rental for that and subsequent months by the bank, as well as by the retention by the lessor of a check for the unassigned portion without cashing it.
Mrs. Bertye Palmer Gay leased to American Oil Company certain premises for the operation of a gasoline sales and service station for a term of ten years, at a monthly rental of $225 in advance on the first of each month. She irrevocably assigned to The Citizens & Southern National Bank $188.73 of the monthly rentals and authorized the bank to collect it. The lessee acknowledged the assignment and agreed to make payment directly to the bank of its assigned portion of the rentals. The lease provided that payment might be made by mailing checks and that the date of mailing should be considered the date of payment. On April 29, 1966, lessee mailed one check for $188.73 to the bank and another to Mrs. Gay for $36.27 to cover the May rent. By accident or inadvertence the envelope containing Mrs. Gay's check was not stamped, and on arrival at the Post Office in Vidalia it was not delivered, but a notice was placed in her box informing her that a letter addressed to her was being held for the payment of five cents postage due. She refused to pay the postage and the letter was returned. Her attorney then informed American by letter that because of the default in making payment on the first of May for the May rental Mrs. Gay was terminating the lease, and he demanded possession on her behalf. American replied to the letter, asserting that there had been no default, that the rental had been mailed April 29 and through some accident or inadvertance the envelope had not been stamped and that on its return the check had been remailed to Mrs. Gay on May 5. She received and kept, but refused to cash this check, and refused others sent for subsequent months.
Her attorney then wrote to American asserting that there had been a breach of the lease, calling attention to the fact that no grace period was provided for late payment of rentals, and again demanded possession.
American refused to yield possession and a dispossessory warrant was sued out, to which a counteraffidavit with bond and security were filed.
Upon a hearing of the matter before the judge without a jury the lease, assignment of rentals, the correspondence between American and Mrs. Gay's attorney and between her attorney and The Citizens & Southern National Bank, and between American Oil and the bank were introduced in evidence and upon a consideration of these, along with a stipulation of the parties as to the facts, the court held that there had been no forfeiture of the lease and found against the issues made by Mrs. Gay in the dispossessory warrant proceeding. From that order and judgment Mrs. Gay appeals.
Paul W. Calhoun, Jr., B. P. Jackson, Jr., Vidalia, for appellant.
Alvin L. Layne, Lyons, Alston, Miller & Gaines, Carl H. Cofer, Jr., Atlanta, for appellee.
We affirm. It is true that the lease here calls for payment of rentals on the first of each month in advance and that no grace period for late payment is provided. But there are circumstances which avoid any forfeiture, or which amount to a waiver if one has occurred.
While it is common knowledge that in the volumes of mail handled by large business concerns a letter will occasionally get mailed without having affixed thereto the proper postage and that this occurs from inadvertence or accident, we do...
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