Prothro v. Walker
| Decision Date | 05 February 1947 |
| Docket Number | 15728. |
| Parties | PROTHRO et al. v. WALKER et al. |
| Court | Georgia Supreme Court |
Rehearing Denied March 20, 1947.
Cumming, Cumming & Cumming, of Griffin, for plaintiffs in error.
Claude Christopher and Christopher & Futral, all of Griffin, for defendants in error.
The executors of the will of W. B. Harris, instituted dispossessory proceedings against C. R. Walker et al. The defendants gave bond and filed a counter-affidavit which included grounds for specific performance. By agreement of the parties all issues of law and fact were tried without the intervention of a jury. The facts developed by the evidence are in substance as follows: On August 25, 1943, W. B. Harris executed a lease contract to defendants in which a certain tract of land on which was operated a peach orchard was rented for a period of one year beginning November 1, 1943 at an annual rental of $500, payable on the first day of September, 1944, and containing a provision that upon 'failure to pay same promptly, when due, said party of the first part has the right at his option to declare this lease void, cancel the same and take possession of the premises.' The lease further provided that the lessees should have the right to 'renew this contract, under the same terms and conditions as above expressed, at the expiration of each year, for an additional year, until the expiration of five years from the date of this agreement.' It also conveyed an option to purchase the premises for a stated sum 'at any time during the continuation of this lease.' It was shown by evidence of two checks properly endorsed by deceased, and it is conceded by all parties concerned, that the rent due on September 1 1944, had been paid and accepted by deceased on September 5 1944, and that the rent due on September 1, 1945, had been paid and accepted by deceased on October 2, 1945. On September 4, 1946, the executors of the will of W. B. Harris (lessor) notified the defendants that since the rent which became due on September 1, 1945, had not been paid, they had elected to exercise the right under the lease to cancel and terminate the same. On September 5, 1946, the defendants tendered the annual rent covering the full year ending November 1, 1946, to one of the executors who accepted it and gave a receipt therefor, but who subsequently returned the check to the defendants on the ground that the lease had been terminated prior to the expiration of the full year ending November 1, 1946, and therefore the payment did not represent the correct amount due. The trial court found 'there has been established a deviation from the terms of the lease agreement providing for payment of the rental on September 1st, and that by reason of the failure of the plaintiffs to give notice to the defendants of adherence anew to the provisions of the agreement, the purported declaration of termination, cancellation and voidance given by plaintiffs to defendants was not effective, and the lease agreement was not terminated.' The court entered judgment in favor of the defendant lessees, and on the cross-action decreed specific performance of the option to purchase. Plaintiffs assign error on the order of the lower court overruling the amended motion for new trial based upon the general grounds, and on special ground which complains of the admission into evidence of the two checks above referred to.
Syllabus Opinion by the Court.
1. Code, § 20-116.
(a) The question as to whether or not there has been a mutual intention, and in fact a mutual departure from the terms of an original contract, as contemplated by the above Code se...
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A.P. Development Corp. v. Band
...rent prevented forfeiture unless specific notice sent to tenant that it must strictly comply with the lease); Prothro v. Walker, 202 Ga. 71, 42 S.E.2d 114, 115 (1947) (When late rental payments are accepted, lessor cannot cancel lease in absence of prior service of reasonable notice on less......
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Bohannon v. Manhattan Life Ins. Co.
...(1974), which relates to the competency of witnesses, not the admissibility of documentary evidence as such. See Prothro v. Walker,202 Ga. 71, 42 S.E.2d 114 (1947); Glo-Ann Plastic Indus., Inc. v. Peak Textiles, Inc., 134 Ga.App. 924, 216 S.E.2d 715 (1975). As to admissibility, appellant ar......
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Sumter County v. Pritchett
...a witness to testify against a deceased, and not with the question as to whether or not such evidence was admissible.' Prothro v. Walker, 202 Ga. 71(2), 42 S.E.2d 114. Appellant cites Dye v. Richards, 210 Ga. 601, 604, 81 S.E.2d 820 and Massachusetts Bonding & Ins. Co. v. Bins & Equipment C......
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Tybrisa Co. v. Tybeeland, Inc., 22685
...virtue of its original terms or a course of conduct which waives strict performance, a question for the jury is presented. Prothro v. Walker, 202 Ga. 71, 42 S.E.2d 114; Verner v. McLarty, 213 Ga. 472, 99 S.E.2d 890; and Powell v. Mars Oil Co., 214 Ga. 710, 107 S.E.2d 208, supra; which are b......