Irwin v. Dailey, 21135

• Decision Date: 09 February 1961
• Docket Number: No. 21135,21135
• Citation: 118 S.E.2d 827,216 Ga. 630
• Parties: W. L. IRWIN v. James P. DAILEY.
• Court: Georgia Supreme Court

Page 827

118 S.E.2d 827

216 Ga. 630

W. L. IRWIN v. James P. DAILEY.

No. 21135.

Supreme Court of Georgia.

Feb. 9, 1961.

Rehearing Denied Feb. 23, 1961.

Second Motion for Rehearing Denied March 9, 1961.

Syllabus by the Court.

1. Where an alleged lease and option agreement are contained in two separate documents, each bearing a different date, it may be alleged and proved that the two documents were executed and delivered simultaneously.

2. Where a lease agreement provides for the payment of a stipulated rent and includes an option to the lessee to purchase the leased property upon certain terms and conditions, the provisions of the agreement respecting the rental to be paid constitutes a sufficient consideration to support the entire contract.

3. The description of land contained in the lease and option agreement is sufficiently definite to authorize a decree of specific performance in this case respecting such land.

4. Where an owner contracts to sell a tract of land, and covenants in such contract that the purchaser shall have certain means of ingress and egress, a court of equity may enforce such covenants in favor of the purchaser.

5. (a) While as a general rule equity will not decree specific performance of a contract relating to personal property, and it is necessary to allege some good reason in equity and good conscience to take a case out of the general rule, where both realty and personalty are involved tn an entire contract, the fact that the contract respecting the realty would be unenforceable independently of the provisions respecting the personalty constitutes a good reason in equity and good conscience to authorize a decree covering the entire agreement. (b) Where a petition is brought for specific performance of a contract for the sale of real estate on which a named hotel is located, and for personalty consisting of equipment and furniture located therein, the contract describing the personalty as being all of the equipment and furniture located in said hotel, hotel lobby, and dining room on the effective date of the contract, with the exception of specified articles, is not too vague and indefinite as to the personal property to form the basis of a decree for specific performance.

James P. Dailey brought a petition against W. L. Irwin asking for a decree of specific performance of an alleged agreement concerning certain real property known as Hotel Hangar and Hotel Hangar Apartments and certain personal property hereinafter described. The alleged agreement is contained in two documents which are attached as exhibits to the petition. The first document is referred to as the lease agreement, and the second is a letter which refers to the lease. The material terms of the lease are as follows:

'This rental agreement entered into and between W. L. Irwin and J. P. Dailey at Hapeville, Ga. on this the first day of October nineteen hundred fifty two witnesseth: W. L. Irwin has rented to J. P. Dailey building known as Hotel Hangar and Hotel Hangar Apartments--Hotel Hangar containing approximately thirty rooms and Hotel Hangar Apartments containing approximately eighteen apartments for fifteen years beginning October 1st, 1952 and ending midnite September 30th 1967 at a rental of one thousand dollars per month, payable in advance on the first day of each month beginning October 1st 1952. Hotel Hangar dining room is included in this lease, and all equipment in said dining room except one iron safe. All furniture now in hotel Hangar rooms and Hotel Hangar lobby is to remain in said rooms and said lobby, but W. L. Irwin is to remove from Hotel Hangar basement all furniture, one sink, filing cabinets, draperies, linens, etc. that is; everything except plumbing and heating in use and attached to building * * * It is further understood and agreed that all furniture, electric stoves, and electric refrigerators, pianos, etc. in apartments fifteen and sixteen except one electric refrigerator now in apartment fifteen are the property of Ellen Irwin and may be removed from said apartments at anytime said Ellen Irwin desires * * * This lease only covers ground on which the building is located with fifteen foot public alleys on East side, Weat side, and North side of said building and on South side or front of said building, that space between front of said building and Virginia Ave., and width of said building facing Virginia Ave., which represents 'front yard' of said building. (See attached diagram) * * * Should J. P. Dailey desire purchase additional land now vacant joining fifteen foot alley which is north boundary of Hotel Hangar, W. L. Irwin will sell same to said J. P. Dailey at price mutually agreeable.'

The letter, which is addressed to J. P. Dailey, reads as follows: '12/15/52 * * * Dear Sir: You have a fifteen year lease on Hotel Hangar dated October 1st 1952. You are hereby given an option to purchase the Hotel Hangar property as described in said lease at anytime during the duration of said lease for the sum of one hundred eighty three thousand nine hundred sixty two and one cent ($183962.01) Dollars. The total amount of rent you have paid (not taxes, insurance, nor any other expendatures) is to be deducted from said one hundred eighty three thousand nine hundred sixty two Dollars and one cent ($183962.01) Yours truly, W. L. Irwin.'

The amended petition contains a legal description by metes and bounds of the property for which a decree of title is sought, and also a description of certain property over which the plaintiff prays for a perpetual easement and right of use for alley purposes. It is alleged that the property particularly described in the petition is the same property which the defendant delivered to the plaintiff under the lease, and that the plaintiff has been continuously in possession thereof since 1952. It is further alleged: that the plaintiff has paid the rent when due; that, in reliance on said lease and option agreement, he has made certain improvements to the premises which he was not obligated to make; that he has notified the defendant of his election to exercise the option agreement; that the option price was fair, just, and equitable; that the defendant denies that the plaintiff has an option to purchase the property and states that a tender of money, if made, would be refused; and that the plaintiff makes a continuing tender of $127,000, or such other sum as he may be liable for, as the purchase price of said property.

The trial court overruled the general demurrer to the amended petition, and the defendant has excepted to that order. The parties will be referred to as they appeared in the trial court.

Wm. G. Grant, Robert W. Spears, Atlanta, for plaintiff in error.

Reeves & Collier, Merrell Collier, Rex T. Reeves, Atlanta, for defendant in error.

MOBLEY, Justice.

1. There is no merit in the contention of the defendant that the plaintiff cannot be permitted to prove that the lease and option were executed on the same day, on December 15, 1952, although the lease bears the date of October 1, 1952. The true date an instrument becomes effective may be shown to differ from the date shown in the instrument itself. Russell v. Carr, 38 Ga. 459(1); Waynesboro Planing Mill v. Perkins Mfg. Co., 35 Ga.App. 767, 134 S.E. 831; Mutual Fertilizer Co. v. Henderson, 18 Ga.App. 495, 89 S.E. 602; Wiggins v. First Mutual Bldg. & Loan Ass'n, 179 Ga. 618, 176 S.E. 636. The petition alleges that the letter dated December 15, 1952, and the lease dated October 1, 1952, were executed simultaneously on December 15, 1952, and were parts of a single agreement.

In their brief counsel for the defendant recognize the principle of law that a single contract may consist of, and be contained in, more than one document, and that, where this occurs, all of the writings which form the basis of the agreement must be considered and read together, and the legal effect accorded them as though they were contained in the same paper. However, they contend that the very language employed in the two documents in this case shows that the letter and the lease agreement were not executed and delivered on the same day, as the petition alleges they were.

It cannot be denied that the language employed in the letter dated December 15, 1952, furnishes a basis for the argument raised by the defendant. For example, the letter, addressed to the defendant, begins as follows: 'You have a fifteen year lease on Hotel Hangar dated October 1st, 1952,' and counsel argues that the use of the word have indicates that the lease was actually in existence on December 15, 1952. But it is to be noticed that the lease itself, which bears the date of October 1, 1952, begins: 'W. L. Irwin has rented to J. P. Dailey building known as Hotel Hangar and Hotel Hangar Apartments,' which, following the same argument of defendant's counsel, might indicate that Irwin had already leased the property to Dailey prior to October 1, 1952.

This court, from a mere reading of the language of the said letter, cannot hold as a matter of law that the letter and lease were not executed in the manner and at the time alleged in the petition. The plaintiff may lawfully allege and prove that a document bearing a particular date was not actually executed or delivered or otherwise made effective on the particular date shown therein. Whether the plaintiff's allegations as to the time of execution of the letter and the lease are true or false cannot be resolved as a matter of law from the language employed in those two documents.

2. The defendant contends that the option contained in the letter of December 15, 1952 is without any consideration and therefore unenforceable. The petition alleges that the lease agreement and the option letter were executed and delivered simultaneously, and the lease by its terms provides for the payment of a rental of $1,000 per month, while the letter provides that, upon exercise of the option, any rent paid under...