Massell Realty Co v. Washburn, (No. 16980.)

• Decision Date: 07 January 1926
• Docket Number: (No. 16980.)
• Citation: 35 Ga.App. 707,134 S.E. 798
• Parties: MASSELL REALTY CO. v. WASHBURN.
• Court: Georgia Court of Appeals

35 Ga.App. 707

134 S.E. 798

MASSELL REALTY CO.

v.WASHBURN.

(No. 16980.)

Court of Appeals of Georgia, Division No. 2.

Sept, 17, 1926.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Suit by the Massell Realty Company against Clyde Washburn. Judgment for defendant was affirmed on certiorari to the superior court, and plaintiff brings error. Reversed.

Jones, Evins, Moore & Powers, of Atlanta, for plaintiff in error.

Alston, Alston, Foster & Moise, of Atlanta, for defendant in error.

JENKINS, P. J. [1] This was a suit in the municipal court of Atlanta to recover the first three months' rental for a store building under an alleged lease for a term of five years. The original petition alleged that:

"On the 8th day of April, 1924, the said Clyde Washburn did enter into a lease contract with your petitioner for a term of five years, beginning the 1st day of May, 1924, or as soon thereafter as the building herein described was completed, a certain storeroom 25 feet by approximately 175 feet, in a building located on the northeast corner of West Peachtree and Pine streets in the city of Atlanta, Fulton county, Georgia, said building being then in the process of construction, at an agreed rental of $300 per month during the first two years and $350 per month during the last three years."

The case being in default, it was agreed at the trial term that it should be brought to trial upon its merits, at which term the defendant filed a general and special demurrer; the special demurrer complaining that the contract referred to in the petition was not set forth. It is alleged in the petition for certiorari that counsel for the defendant then stated that the only purpose of the special demurrer was to obtain a copy of the contract sued on. It appears that thereupon the plaintiff produced the contract in court and informally tendered it as an amendment to the petition. The thirteenth paragraph of the contract stipulates as follows:

"It is understood and agreed that the premises which are the subject-matter of this written lease have not been completed at the time of the actual execution and delivery of this document, but that said building is under course of construction, and it is of the essence of this agreement that the premises shall be constructed in accord with the plans and specifications existing and prepared by E. C. Seiz. A true and correct copy of plans for the improvement, shown on three sheets, have been examined by the parties hereto and identified by their initials as Exhibits A, B, and C to this lease contract, and are now made a part hereto as fully as if incorporated herein."

Thereupon the defendant renewed and amended his general demurrer, setting up that the contract sued upon was invalid, inthat it failed to conform to the requirements of the statute...