Smith v. Top Dollar Stores, Inc.

• Decision Date: 13 April 1973
• Docket Number: No. 48092,No. 1,48092,1
• Citation: Smith v. Top Dollar Stores, Inc., 198 S.E.2d 690, 129 Ga.App. 60 (Ga. App. 1973)
• Parties: Cora B. SMITH et al. v. TOP DOLLAR STORES, INC
• Court: Georgia Court of Appeals

Page 690

198 S.E.2d 690

129 Ga.App. 60

Cora B. SMITH et al. v. TOP DOLLAR STORES, INC.

No. 48092.

Court of Appeals of Georgia, Division No. 1.

April 13, 1973.

Rehearing Denied May 9, 1973.

Syllabus by the Court

1. Where on the basis of an oral agreement the tenant moves into the owner's property and tenders a written lease, the majority of the stipulations in which (including amount of rent, computation of rent, term of lease, right of assignment, insurance, indemnity provisions and options to exist at the end of the term) are rejected by the landlord, who tenders back a written agreement changing or deleting the terms objected to, and the tenant thereafter instead of accepting the lease as rewritten removes itself after giving notice as a tenant at will, the landlord is not entitled to damages for lost rents after the removal. There was no such part performance as to remove the oral agreement from the statute of frauds.

2. The landlord is entitled to sue for damage to the real estate while the tenant was in possession.

3. Disagreements as to apportionment of costs of record transmitted to this court should first be presented to and ruled on by the trial court. Where the only judgment appealed from is a motion to dismiss the declaration in attachment, and the only record necessary to be considered by this court is the pleading, motion and ruling thereon, this court will not refuse to consider enumerations of error on the ground that appellant's brief fails to cite page references to the record on appeal.

Cora Smith and others filed a declaration in attachment alleging that they owned certain commercial property which they leased to the defendant on June 1, 1971, for a five-year period at $750 per month plus 2% of annual gross sales over a certain amount; that on October 31, 1971 the defendant was observed removing its merchandise from the building and plaintiffs commenced proceedings in attachment; that the defendants then gave a 30-day notice and moved out as of the end of November and paid rent only through that date; that four years and seven months remain of the lease term and plaintiffs seek this amount either as specific performance of the contract or damages. They also seek damages in the sum of $13,975 for damage to the store and its fixtures. A motion to dismiss on the ground that the declaration failed to state a claim because based on an oral agreement within the statute of frauds was granted and the plaintiffs appeal.

Allen, Edenfield, Brown & Franklin, Statesboro, Joseph B. Bergen, Savannah, for appellants.

Johnston & Brannen, Sam L. Brannen, Statesboro, for appellee.

DEEN, Judge.

1. 'A lease for a period of five years or more is an estate for years (Schofield v. Jones, 85 Ga. 816, 823, 11 S.E. 1132; Anderson v. Kokomo Rubber Co., 161 Ga. 842 (132 S.E. 76) under the provisions of Code § 85-801.' Ward v. McGuire, 213 Ga. 563, 565, 100 S.E.2d 276. A lease for less than five years, unless by its own terms it specifies differently, will pass only a usufruct. Code § 61-101; Warehouses, Inc. v. Wetherbee, 203 Ga. 483(3), 46 S.E.2d 894. Examination of the petition and its exhibits shows that the parties to this lawsuit entered into an oral agreement of some sort for a lease of the property involved, on the strength of which, the defendant moved in and started doing business. Contracts involving estates for years and agreements not to be performed within a year are of course within the statute of frauds and must be in writing to be effective. Code § 20-401(4, 5). A written lease was prepared and signed by the defendant's president dated May 22, 1971, and forwarded to the plaintiffs. This lease showed the term as four and a half years instead of five, the monthly rental at $700 instead of $750, percentage overage showed the gross sales base as $420,000 instead of $450,000, which the plaintiffs contended were proper figures. Instead of signing and returning the lease the landlord returned it unsigned with the changes indicated above and others, some of which dealt with material rights and duties regarding the right to sublease, alterations and additions by the lessee, insurance, renewal options, and indemnity provisions in the event of third party injuries. The lease as submitted contained 18 clauses; the plaintiffs either deleted or materially changed 10 of these, then returned the document with the request that a new copy be made, signed, and reforwarded in conformity with the alterations. This the defendant failed to do, but on the contrary elected to treat itself as a tenant at will under Code § 61-102, gave the required 30-day notice, and moved out. The plaintiffs contend, however, that although the terms of the previous oral agreement are contested, the agreement itself, whatever it may have been, is binding because there has been such part performance under Code § 20-402(3) as would render it a fraud on the part of the defendant if the court did not compel it to comply, and also because there has been part performance on one side accepted by the other in accordance with the contract.

This case differs from Shell Petroleum Corp. v. Jackson, 47 Ga.App. 667, 171 S.E. 171, where, as the court states, the entire transaction could be gathered from the correspondence between the parties together with the lease draft. Here no single necessary element of the oral agreement (except the identity of the property) appears without dispute. Whether a mere usufruct or an estate for years was intended, what the rent was to be and manner in which its figure was arrived at, what freedom was to be allowed the...