Jones v. Clark
| Decision Date | 23 October 1978 |
| Docket Number | No. 56141,56141 |
| Parties | JONES v. CLARK et al. |
| Court | Georgia Court of Appeals |
Jones, Cork, Miller & Benton, Thomas C. James, III, Macon, for appellant.
Thomas F. Jarriel, Macon, for appellees.
The appellant brought this suit to collect rental payments due under a 5-year lease contract with the appellees. The trial judge found the lease to be void for illegality and granted summary judgment to the appellees. He also denied a motion for summary judgment filed by the appellants.
The lease provided that the premises could be used only for the operation of a liquor store. The rent was set at $500 per month as the "minimum rental," with an additional requirement that the appellees pay a stated percentage of their gross sales to the extent that this amount exceeded the minimum rental. The State Revenue Department issued a retail liquor license to the business but subsequently informed the appellees that they were in danger of losing the license because of the percentage rental feature of the lease. Rule 560-2-5-. 02(5) of the Rules of the Department of Revenue provides in part: "No retail license shall be approved where the licensee pays to any person, firm, or corporation, any rent . . . based upon the profits or sales of such licensed store."
Having realized the possible consequences of the percentage rental provision, the appellees expressed their concern in a letter to the appellant. In response, the appellant wrote: "We will waive the percentage clause in order to comply with your licensed (sic) regulations, but we are unwilling to cancel the lease."
Although no formal action was ever initiated by the Revenue Department to revoke or rescind the license, the appellees closed the store, returned the keys to the appellant, and discontinued paying rent. The appellant accelerated the remaining "minimum rental" payments in accordance with the default provisions of the lease and initiated this litigation. At no time have any payments come due under the percentage clause, nor have any ever been demanded. Held :
1. Pretermitting the question of whether the Revenue Department regulation had the effect of rendering the percentage clause illegal as against public policy, we do not believe that such illegality would necessarily render the remainder of the contract void. Code § 20-501 provides: Code § 20-112 provides:
The lease contract contained the following "Severability Provision" : "If any part or parts of this lease should be declared void or unenforceable . . . for any reason whatsoever, such unenforceability and such void portion shall not vitiate any other part of this lease . . . but all and every part of this lease not void and not held to be unenforceable shall be fully binding on the parties." In view of this contractual provision, as well as the appellant's prompt waiver of the percentage clause upon being informed of the conflict with the Department of Revenue regulation, we hold that the percentage clause was severable and that its presence, even if illegal, did not void the remainder of the contract. "Since the contract is severable, even if there is a partial failure of consideration because of illegality, the (defendant) here cannot object if the opposite party is willing to accept the performance of the remaining portions of the contract." Southern Airways Co. v. DeKalb County, 102 Ga.App. 850, 867, 118 S.E.2d 234 (1960). See also Roberts v. H. C. Whitmer Co., 46 Ga.App. 839, 169 S.E. 385 (1933). The grant of summary judgment to the appellee is accordingly reversed.
2. The lease contained an...
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...will not be enforced. Kothe v. R. C. Taylor Trust, 280 U.S. 224, 226, 50 S.Ct. 142, 74 L.Ed. 382 (1930); see also Jones v. Clark, 147 Ga.App. 657, 659, 249 S.E.2d 619 (1978). The Court concludes that the imposition of an additional 5% interest by the arbitrators in accordance with the Frenc......
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...have been illegal and void as a penalty, because it failed to meet any of the criteria for validity set forth in Jones v. Clark, 147 Ga.App. 657(2), 249 S.E.2d 619 (1978). (e) Glen Oak's conclusion that the issue of payments due in the future was in fact previously adjudicated, is not suppo......
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