Mendel v. Pinkard
| Citation | 132 S.E.2d 217,108 Ga.App. 128 |
| Decision Date | 20 June 1963 |
| Docket Number | Nos. 40006,40008,No. 3,s. 40006,3 |
| Parties | Simon MENDEL et al., etc. v. Mrs. D. E. PINKARD et al. Mrs. D. E. PINKARD et al. v. Simon MENDEL et al., etc |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court
1. An unambiguous contract creating a long-term lease of realty is construed by the court.
2, 3, 4, 5. The trial court erred in granting a new trial on the special grounds discussed in these divisions of the opinion.
6, 7, 8. The trial court did not err in denying plaintiffs-lessors' motion for judgment non obstante veredicto nor in overruling their motion for new trial on the general grounds and the special grounds as discussed in these divisions of the opinion.
In 1909, Jasper N. Smith, owner, leased a tract of land on Houston Street, in Atlanta, Georgia, to R. Blair Armstrong for ninety-nine years. In 1921, Hyman Mendel became successor lessee to the property, as improved. After his death in 1954, the plaintiffs in error, Simon Mendel and Mrs. Sarah Koplin, as his executors and trustees, succeeded him as lessees.
The defendants in error are the original lessor's granddaughters to whom he deeded the property and assigned the lease in 1916, reserving the rents to himself until his death in 1918.
Under the terms of the lease the lessee is obligated to pay $2,400 annual rent, to keep the premises in a fair and reasonable state of repair, and to pay casualty insurance, special assessments, ad valorem taxes, and all other charges against the property so that lessor would receive the annual rental payment of $2,400 as a net return. The lessee was accorded the right to sublet the whole or any part of the premises without the consent of the lessor.
The terms of the lease which are in direct issue here are contained in paragraphs 8 and 13 which read in their entirety as follows:
This cause has had three jury trials. This is the second appearance of the matter in the appellate courts.
The first jury trial resulted from a petition for declaratory judgment filed by the successor lessees in Fulton Superior Court. The successor lessors' general demurrer was overruled by the trial court. The case was tried before a jury on the issue of whether or not material alterations or changes had been made in the buildings by the lessees, and the jury found in favor of the lessees. The lessors filed a bill of exceptions to the Court of Appeals on the trial court's order overruling their general demurrer to the lessees' petition seeking a declaration of rights. This court transferred the case to the Supreme Court, Pinkard v. Mendel, 101 Ga.App. 771, 115 S.E.2d 125. The Georgia Supreme Court, in Pinkard v. Mendel, 216 Ga. 487, 117 S.E.2d 336, held that an action for declaratory judgment was not the proper remedy thereby rendering the previous proceedings in the case nugatory.
On December 11, 1957, while the declaratory judgment action was pending, the lessors filed a dispossessory warrant affidavit against Simon Mendel and Mrs. Sarah Koplin, lessees. The basis of the dispossessory warrant affidavit was that some time after Hyman Mendel succeeded to the tenancy in 1921, the lessees and committed acts which allegedly constituted material alterations without giving prior notice to the lessors and posting bond as required by paragraph 8 of the lease; and that these acts in violation of paragraph 8, when coupled with the provisions of paragraph 13, authorized the lessors to institute legal proceedings to secure immediate possession of the premises by declaring a forfeiture of the lease. A great deal of evidence was introduced concerning the alterations and repairs made between 1921 and 1957 by Mendel, his successor lessees, and the subtenants, including: the removal of internal partitions, opening an entrance through basement partitions, opening an entrance through a support-bearing wall to the adjoining building, remodeling the facade of several units, closing window openings, removing stairs, installing rest rooms, replacing an elevator, raising the level of a floor, and installing acoustic ceiling tile and asphalt floor tile. In effect, the use of the building was changed from five small, three-story rental units to a single horizontal rental unit of all of the basement, most of the first floor and all of the second floor, plus several first-floor stores. The case was tried in Fulton Superior Court in 1961; the jury returned a verdict for the lessors. On the lessees' motion for new trial the trial judge ordered a new trial on the general grounds.
The case was retried in 1962 in Fulton Superior Court before a jury. This retrial is now the case before us. The defendants admitted past failure to give notice and bond, but alleged that they tendered both as soon as they learned of lessors' intent to declare a forfeiture; they denied that any of the changes which had been made were material alterations and affirmatively alleged that any alterations made had either maintained or increased the value of the premises. At the close of the evidence, lessors moved for a directed verdict. The motion was overruled, and the jury returned a verdict in favor of the lessees. Lessors then moved for a judgment non obstante veredicto and for a new trial on eighteen special grounds related primarily to the judge's charge to the jury. The trial judge granted the lessors' motion for new trial on nine special grounds (4 through 12); the lessees in the main bill of exceptions assigned as error the granting of the motion for new trial on each of the special grounds enumerated by the trial judge. The lessors then filed a cross bill of exceptions to the court's refusal to grant their motion for judgment n. o. v. and their motion for a new trial on the remaining grounds (general grounds and special grounds 13 through 18).
(The terms 'lessor' and 'lessee' as used in this opinion refer to the original parties signatory to the lease; the plural forms refer to their successors, the litigants in this case.)
Westmoreland, Hall & Pentecost, John L. Westmoreland, Atlanta, for plaintiffs in error.
Troutman, Sams, Schroder & Lockerman, Allen E. Lockerman, Robert L. Pennington, Atlanta, for defendants in error.
1. The controversies presented in this appeal, stemming as they do from a contract creating a long-term lease of realty, necessitate that we first examine the agreement for ambiguity. If unambiguous, the construction of the contract, under authority of numerous decisions of our appellate courts and Code § 20-701, is a question of law which the courts have a duty to perform. On the topic of ambiguity, at least, counsel seem in harmony, and we with them. As we view the instrument, it is clear and unambiguous.
While it is true that contracts must be read as a whole to determine the true intentions of the parties, counsel are agreed that paragraphs 8 and 13 of the lease contract are the only provisions of the agreement necessary for consideration in resolving this dispute. (See the fatual summation for the full text of these two paragraphs.) We have carefully considered the agreement as a whole and accede to the view of counsel that other provisions of the lease do not alter or change the clear and unambiguous meaning of paragraphs 8 and 13.
The construction of paragraphs 8 and 13 urged by the present lessors is to the effect that a forfeiture is occasioned where any material alterations or changes in the buildings are performed by the lessee without giving prior notice of the changes contemplated and without giving to the lessor a bond conditioned upon replacing upon the leased premises improvements of equal value with the improvements to be removed or materially changed.
The successor lessees contend that the proper construction of paragraphs 8 and 13 should be that it is not necessary for them to give notice and bond to the lessors unless demand is first made upon the lessee; hence in absence of notice and bond the subject of materiality of alterations is merely a question of fact in the determination of which value would be a factor.
As we construe the lease, it is clear that the lessee was accorded the right at...
To continue reading
Request your trial
-
Am. Mgmt. Servs. E., LLC v. Fort Benning Family Cmtys., LLC, A15A0125.
...(1999).39 Id. at 240–241, 243(1)(b), 514 S.E.2d 40.40 Id. at 242(1)(b), 514 S.E.2d 40.41 Id. at 243(1)(b), 514 S.E.2d 40.42 108 Ga.App. 128, 132 S.E.2d 217 (1963).43 Id. (emphasis supplied).44 See Ameris Bank v. Alliance Investment & Mgmt. Co., 321 Ga.App. 228, 234(3)(a), 739 S.E.2d 481 (20......
-
Stephen W. Brown Radiology Associates v. Gowers
...sound. Brown v. Matthews, 79 Ga. 1(1), 4 S.E. 13; ... Jordan v. Fowler, 104 Ga.App. 824, 826, 123 S.E.2d 334." Mendel v. Pinkard, 108 Ga.App. 128, 134, 132 S.E.2d 217. Further, the trial court did not err in denying the motion for new trial based on the general grounds as there was evidence......
-
Bradham v. State
...fragment may be objectionable, when put together and considered as a whole, the charge is perfectly sound. Mendel v. Pinkard, 108 Ga.App. 128, 134, 132 S.E.2d 217; Jones v. Tyre, 137 Ga.App. 572, 574, 224 S.E.2d 512; Hobart Bros. v. Malcolm T. Gilliland, Inc., 5 Cir., 471 F.2d 894. See Woma......
-
Liberty Nat. Life Ins. Co. v. Power
...the jury must be considered as a whole and each part considered in connection with every other part of the charge. Mendel v. Pinkard, 108 Ga.App. 128, 134 (2), 132 S.E.2d 217. Reading the charge as a whole, we find that the charge fairly presented the contentions of both parties. In order t......