Roberts v. Willink

• Decision Date: 31 January 1857
• Docket Number: No. 13.,13.
• Citation: 21 Ga. 97
• Parties: Jefferson Roberts, plaintiff in error. vs. Henry F. Willink, Sen., defendant in error.
• Court: Georgia Supreme Court

21 Ga. 97

Jefferson Roberts, plaintiff in error. vs. Henry F. Willink, Sen., defendant in error.

No. 13.

Supreme Court of the State of Georgia

JANUARY TERM, 1857.

Suit to recover rent. In Chatham Superior Court, decision by Judge Fleming. At chambers, 1856.

This case was argued before Judge Fleming upon the following statement of facts:

1st. Henry F. Willink Sr., leased certain property to E. F. Kinchley, on the eighteenth day of September, 1850, for the term of one year from November 1st, with the privilege of renewing the same for five years, stipulating that the lessee should on or before the first day of August in each year, tender to the said H. F. Willink, four promissory notes, with good endorsers, for the rent of the ensuing year.

2d. That if at the expiration of the lease the lessees should desire to rent the said property for another year, it might be done by tendering four notes as aforesaid, endorsed as before, for the rent of the ensuing year, said notes to be tendered on or before the first day of August, as before.

3d. E. F. Kinchley, some time in the year 1853, assignedsaid lease to Robert Austin and by Austin to Roberts on June 9th, 1856.

4th. After said assignments, and until the first of August, 1855, the terms of the lease were complied with, by the tender and acceptance of the notes of E. F. Kinchley, endorsed as required by the terms of the lease.

5th. The lease expired on the first day of November, 1855, unless renewed for one year by a compliance with its terms.

6th. On or before the first day of August, 1855, Jefferson Roberts, tendered his own note with good endorsers, endorsed for the rent of the ensuing year, which was refused by Willink.

7th. The notes of Kinchley endorsed for the said rent were not tendered.

It is agreed between counsel for both parties that the above state of facts is correct, and that on said facts argument shall be had, whether Roberts, the said assignee, is entitled to the possession of said premises for the current year, or whether the lease did not expire on the first of November, 1855, by the failure to comply with its terms.

It is further agreed, that the rents due by the several tenants now in possession, shall be held up to await the decision of said cause. Any tender of rent by Roberts being waived without prejudice to either party.

JOHN M. GUERARD,

Defendant's Attorney.

WARD & OWENS,

Plaintiff's Attorney.

LEASE.

"GEORGIA,

Chatham County.

"This indenture, made this eighteenth day of September, in the year of our Lord one thousand eight hundred and fifty, between Henry F. Willink, Senior, of the City of Savan-nah, on the one part; and Edward F. Kinchley, now of the City of Augusta, of the second part,

Witnesseth, that the said party of the first part, for and in consideration of the covenants and agreements hereinafter and by these presents mentioned, to be kept by the party of the second part, doth grant lease and to farm let, unto the said party of the second part, all that wharf lot in the city of Savannah known as Willink's wharf, commencing at the Union Ferry wharf and running three hundred and thirty feet east on Savannah river to Lamar's wharf, and extending south to Bay street continued, save the south-west corner as now in possession of the Savannah Gas company, with all the buildings on the same, save the one on the south side nearest the part of said lot in possession of the Savannah Gas company, and now occupied as a Block shop, together with all and singular the appurtenances thereto belonging or in any wise appertaining, to have and to hold the said wharf lot and buildings with the appurtenances, unto the said party of the second part, from the first day of November next, for the full end and term of one year, then next ensuing. And the said Edward F. Kinchley for himself, his executors and administrators, doth by these presents, covenant and agree, well and truly to pay to the said Henry F. Willink, his executors and administrators, the full and just sum of two thousand dollars per annum, during the term aforesaid, in equal quarterly payments of five hundred dollars, the first payment to be made on the first day of February next. And the said Henry F. Willink, party of the first part, for himself, his heirs, executors and administrators, covenants to, and with the said Edward F. Kinchley, party of the second part, that he, the said Henry F., will for each and every year, for the term of five years, next succeeding the first day of November, eighteen hundred and fifty-one, if desired by the said Edward F., renew the lease upon the same conditions and covenants as are herein contained; Provided nevertheless, that, the said Edward F. shall on or prior to the firstday of August, in each and every year of the said five years, offer to the said Henry F. four promissory notes, with good and sufficient endorsers thereon, for five hundred dollars each, payable on the first days of February, May, August and November, respectively, of the year next ensuing, said promissory notes, being the annual rent of two thousand dollars, due and payable as aforesaid. And provided, that, the said Edward F. may terminate the lease and decline renewal thereof at the expiration of any year of the said five years. And that the said Henry F. doth further covenant to and with the said Edward F., that for and during the term of the aforesaid lease, or so long as the said lot and premises are kept by the said Edward F., that the said Henry F. will keep the wharf, lot and buildings in good and proper repair, by repairing all injuries resulting from ordinary wear and tear and decay. And the said Henry F. further covenants to, and with the said Edward F., that he will remove the house at present occupied as a Block shop,...