Pritchett v. King

• Decision Date: 04 December 1937
• Docket Number: Nos. 26355, 26356.,s. 26355, 26356.
• Citation: Pritchett v. King, 56 Ga.App. 788, 194 S.E. 44 (Ga. App. 1937)
• Parties: PRITCHETT. v. KING. KING. v. PRITCHETT.
• Court: Georgia Court of Appeals

56 Ga.App. 788

194 S.E. 44

PRITCHETT.

v.KING.

KING.

v.PRITCHETT.

Nos. 26355, 26356.

Court of Appeals of Georgia, Division No. 1.

Dec. 4, 1937.

Syllabus by the Court.

1. The motion to dismiss the writ of error is denied.

2. Breach by the lessee of a covenant contained in a lease contract does not authorize a forfeiture of the lease by the lessor, unless the contract expressly so provides.

3. Where a lease contract provides that at the expiration thereof the lessee "shall have the option of renewal thereof, for a period of not less than one year or for such time as the lessor renews said lease for himself, " at a stipulated rental and upon the same terms as contained in the lease, and before the expiration of the lease the lessee gives notice in writing to the lessor of his intention to renew the lease, this so operates to extend the term as provided in the lease as to defeat an action by the lessor to dispossess the lessee, although no new lease was actually executed.

4. Under the above rulings the court did not err in directing the verdict in favor of the defendant.

Error from Municipal Court of Atlanta; Clarence Bell, Judge.

Action by W. L. Pritchett against John M. King. To review a judgment for defendant, plaintiff brings error and defendant files a cross bill of exceptions.

Judgment affirmed, and cross bill dismissed.

Walter A. Sims, of Atlanta, for plaintiff in error.

J. Wilson Parker and Ellis McClelland, both of Atlanta, for defendant in error.

MacINTYRE, Judge.

Dr. W. L. Pritchett had issued a dispossessory warrant against John M. King for the possession of certain premises located at 29¹/₂ Marietta street in the city of Atlanta, Fulton county, Ga. It appears that on the 19th day of April, 1935, the above parties entered into a lease contract wherein Pritchett leased to King the premises in dispute for the term of 20 months, commencing on May 1, 1935, and ending on December 31, 1936. The contract provided in part as follows: "Said party of the second part, at the expiration of the present lease, shall have the option of renewal thereof, for a period of not less than one year or for such time as the lessor renews said lease for himself, at a rental not to exceed fifty-five dollars per month, and upon the same terms as herein set out." It also provided that "The premises shall be used for the practice of medicine and its allied purpose, by either the agents, partners, or employees of lessee; and in no event shall said premises be used for any illegal purpose."

On October 13, 1936, King addressed a letter to Pritchett which read in part as follows: "You having renewed your lease on the whole of said floor for the period of three years beginning January 1, 1937, and ending December 31, 1939; therefore this is to notify you in writing that I do hereby exercise my option as provided in our lease to renew my lease with you for a period of three years, beginning at the expiration of the present lease from January 1, 1937, through December 31, 1939, at the rate prescribed by said contract, to-wit, $55 per month, said renewal, being upon the same terms as set out in our original lease." Thereafter, on November 3, 1936, Pritchett, by and through his attorney at law, wrote King as follows: "By direction of Dr. W. L. Pritchett, I am notifying you that your lease on the premises occupied by you at the above address, will not be renewed." Plaintiff bases his right to refuse a renewal of the lease upon the fact that, in the latter part of 1935, King pleaded guilty to an accusation charging him with practicing medicine without a license, and that he was therefore using the building for an illegal purpose, which authorized him to forfeit the lease, which he did as soon as he learned of such illegal use.

After the introduction of evidence, the trial judge directed a verdict for the de fendant as follows: "The court directs the jury to find a verdict for the defendant on the ground that the plaintiff, after the notice and the alleged breach of the covenants in the lease complained of, accepted rent on the premises, and the Court is of the opinion that by so doing, the plaintiff waived his right to deny the defendant the option to renew under the lease, and is now estopped to deny the defendant's right to renew, it being undisputed that the defendant has exercised the option in the lease to renew upon its terms as therein stated." The action of the trial judge in directing a verdict for the defendant was manifestly correct for reasons other than that stated in his order, and we do not deem it necessary, under the view we take of the case, to determine the correctness of the reasons assigned by the trial judge. However, see in this connection Guptill v. Macon Stone Supply Company, 140 Ga. 696, 79 S.E. 854, Ann.Cas.l915A, 1249; Allen v. Allen, 154 Ga. 581, 590, 591, 115 S.E. 17. It is true that, where there is a breach of a covenant which authorizes the forfeiture of the lease, the prompt assertion thereof by the leasor will operate to defeat the lessee's privilege to renew, however, forfeitures by acts of a party to a lease because of a breach of a covenant or condition are not favored by the courts. Code, § 37-216; Mahoney v. Mc-Kenzie, 27 Ga.App. 245, 248, 107 S.E. 775; 35 C.J. 1062, § 232. It is thus the "General rule that the breach by a lessee of the covenants or stipulations on his part contained in the lease does not work a forfeiture of the term in the...