Neely v. Sheppard

• Decision Date: 09 March 1938
• Docket Number: 12114.
• Citation: 196 S.E. 452,185 Ga. 771
• Parties: NEELY v. SHEPPARD.
• Court: Georgia Supreme Court

196 S.E. 452

185 Ga. 771

NEELY v. SHEPPARD.

No. 12114.

Supreme Court of Georgia

March 9, 1938

Rehearing Denied March 18, 1938.

On Second Rehearing March 26, 1938.

Error from Superior Court, Burke County; A. L. Franklin, Judge.

Suit by A. L. Sheppard against A. W. Neely to enjoin the prosecution of an eviction proceeding instituted by the defendant against the plaintiff as a tenant holding over. Judgment for plaintiff, and defendant brings error.

Reversed.

RUSSELL C.J., dissenting.

On Rehearing.

Syllabus by the Court.

1. The plaintiff sued to enjoin the prosecution of an eviction proceeding instituted by the defendant against him as a tenant holding over. He alleged that he entered into possession of the property under a contract of rental with the defendant, for a period of twelve months which had not expired, and that the contract embodied an option to purchase at any time within such period. He prayed for an injunction to prevent his eviction, and for specific performance of the option agreement. It appeared upon the trial that the agreement was not in writing, and that the plaintiff was already in possession as a tenant at the time it was made. The defendant pleaded, among other things, the statute of frauds. Code 1933, § 20-401 et seq. The plaintiff's status was not changed under the contract, if at all, until after its alleged repudiation by the defendant. The plaintiff claimed an exception to the statute, in view of the following facts: (1) That he tendered the purchase price, which was refused by the defendant; (2) that he would not have entered into the contract of rental without the option to purchase (3) that in view of the contract the defendant as landlord was relieved of the expense of making needed repairs and improvements; (4) that on faith of the agreement the plaintiff made contracts with others in reference to the business conducted by him on the premises; and (5) that he had paid the rent as agreed. Held:

(a) Under the evidence, none of the facts enumerated constituted such part performance of the option agreement or so prejudiced the plaintiff as to create an exception to the statute of frauds.

(b) The verdict in the plaintiff's favor, as related to specific performance, was contrary to the evidence and without evidence to support it.

2. Since the plaintiff had no equitable interest to protect, and showed no other defense to the eviction proceeding which he could not assert by counter affidavit, he was not entitled to an injunction to arrest the eviction proceeding, although such proceeding may have been prematurely instituted, as contended by him. The verdict in his favor was unauthorized under any theory, and the judge erred in refusing to grant a new trial.

Lewis & Lewis, of Waynesboro, for plaintiff in error.

Pierce Bros., Benj. E. Pierce, Jr., and Franklin H. Pierce, all of Augusta, and Joseph Law, of Waynesboro, for defendant in error.

BELL Justice.

A. L. Sheppard filed a suit to enjoin A. W. Neely from prosecuting a dispossessory warrant proceeding pending in the city court of Waynesboro, in which Neely sought to evict Sheppard, as a tenant holding over, from a building in the city of Waynesboro known as the Grand Theatre Building and more particularly described in the petition. The plaintiff alleged that he was not a tenant holding over, but that he was the equitable owner of the premises, in that he was in possession of the same under a contract of rental for a period of twelve months; that, as a part of that contract he had been granted an option by Neely to purchase the premises at any time within twelve months after October 1, 1935, for $8,000; and that he had tendered that sum to Neely before the twelve months expired, and the tender had been refused. He prayed for an injunction, and also that Neely be required to specifically perform the contract with reference to the sale of the land. The petition did not show on its face whether the alleged contract was oral or in writing. The defendant filed an answer denying the material allegations of the petition. He alleged that the plaintiff was a tenant at will, and that he had given to the plaintiff the statutory notice of sixty days before instituting the dispossessory warrant, and denied that he had granted to the plaintiff an option to purchase the property. On the trial the jury found a verdict in favor of the plaintiff. A new trial was granted by the court. Thereafter, on May 10, 1937, the defendant amended his answer by averring that the alleged option on which the plaintiff relied was not in writing, and pleading the statute of frauds. The plaintiff then amended his petition by alleging the following facts, for the purpose of showing performance or part performance on his part: '(a) That on the 17th day of July, 1936, your petitioner tendered the said defendant the sum of $8,000, the price named in his option, and demanded a deed to said property, which defendant refused to execute, thus fulfilling his part of the option contract; and it would be a fraud on the part of defendant to refuse to comply with his option. (b) That plaintiff would not have rented said property had it not contained an option to buy. He told defendant that it would be necessary to expend some $2,500 in improvements for him to rent for another year, but if he, defendant, could not expend said amount, that he would re-rent the property provided he was given an option to purchase the same during the twelve-months contract, and this the defendant agreed to do; and he alleges that he thus saved the defendant that sum, and it was a part of the contract of rental and option contract. (c) That not only this, but plaintiff, on the faith of his contract of rental and his option contract, obligated himself for films or pictures for a period of twelve months, as he could not operate a moving-picture except by making contracts for twelve months, and this fact the defendant well knew when he rented said premises to plaintiff, and this was another reason for his having to rent for a year, which amounted to some five hundred or a thousand dollars; and this expense he would not have incurred had he not had an option to purchase the said described premises. (d) That petitioner has fully complied with his part of the option contract in every way; defendant allowed him to enter and retain possession under said contract of rental, and having complied with his option by paying rent, refraining from demanding any improvements, incurring unusual expense in the purchase of pictures, and tendering the amount that was agreed on as the sale price, and he is entitled to have defendant carry out his part of said contract.' The case then proceeded to trial a second time. The verdict, as before, was in favor of the plaintiff. The defendant again moved for a new trial, which the court refused, and he excepted. The motion for a new trial contained the general grounds and several special grounds which were added by amendment.

1. After a careful examination of the record, we have reached the conclusion that the verdict in favor of the plaintiff was contrary to the evidence and without evidence to support it, and that the judge erred in refusing to grant a new trial on the general grounds. We are reluctant to set aside a second verdict in favor of the plaintiff, as well as to disagree with the learned counsel for the defendant in error who so earnestly contend that the verdict should stand. At the time of the first verdict, however, the defendant had not pleaded the statute of frauds, and therefore the second trial involved a new and distinct issue which apparently was not considered on the first trial. Bridges v. Williams, 148 Ga. 276, 96 S.E. 499. Furthermore, any number of verdicts in favor of the plaintiff could have no sacredness where the law and the evidence are clearly against a recovery.

Chambers v. Collier, 4 Ga. 193; Trustees of Monroe Female University v. Broadfield, 30 Ga. 1(3); McDade v. Georgia Railroad Co., 60 Ga. 119; Mitchell v. Malone, 77 Ga. 301; Fremont Cultivator Co. v. McCamy, 80 Ga. 343, 4 S.E. 849. It appears without dispute that the plaintiff acquired possession of this property as a tenant of the defendant in June, 1930. He contends that while remaining in such possession he had an agreement with the defendant in July or August, 1935, whereby the rental contract was renewed for a period of twelve months beginning October 1, 1935, and that as a part of this agreement he was granted an option to purchase the property for $8,000 at any time within the twelve-months period. The rent agreed on was $50 per month, but there was no agreement that the rent as paid should be applied on the purchase money in case of an election to exercise the option. The defendant contended that the plaintiff was and had been for several years a tenant by the month or at will, and that there was no agreement to rent the property for twelve months from October 1, 1935, as claimed by the plaintiff. The defendant further contended that in September, 1935, the plaintiff asked for improvements which the defendant declined to make. He admitted that he stated to the defendant on that occasion that he would sell the property for $8,000, but he testified that he granted no option, and that this offer was not made in connection with any agreement to rent the property. In November, 1935, the defendant agreed to sell the property to a different person for $8,000, and a little later a deed executed by him, and the amount to be paid by such purchaser, were placed in escrow, subject to delivery of possession by the defendant. In December the defendant gave to the plaintiff a written notice that the tenancy would be terminated on March 1, 1936, and on refusal of the plaintiff to vacate the...