Storey v. Austin, 23234
| Decision Date | 06 January 1966 |
| Docket Number | No. 23234,23234 |
| Citation | 146 S.E.2d 728,221 Ga. 692 |
| Parties | Frederick G. STOREY v. D. E. AUSTIN, Jr. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The petition alleged a cause of action for specific performance of an option to renew a lease, and for other relief.
Jones, Bird & Howell, F. M. Bird, Eugene T. Branch, Trammell Vickery, Atlanta, for appellant.
Stone & Stone, Noah J. Stone, Atlanta, Thomas O. Davis, Davis & Stringer, Decatur, for appellee.
We evaluate a petition seeking specific performance of an option to renew a lease, and for ancillary relief.
Frederick G. Storey filed such a petition against D. E. Austin, Jr., in the Superior Court of DeKalb County, making allegations which, insofar as material here, are substantially those that follow.
In 1955 Austin leased to Storey certain described property for a ten year term beginning July 1, 1955, and ending June 30, 1965, the instrument giving the lessee the option to renew the lease for two like periods. The lessee entered into possession and erected a drive-in theatre. He installed theatre and concession equipment at a cost of approximately $225,000 and has maintained such improvements up to the filing of this suit.
Pursuant to the lease agreement, the lessee exercised the option to renew for ten years beginning July 1, 1965, and ending June 30, 1975. But the lessor refuses to renew.
Prior to June 1, 1965, the lessee's agent notified William C. Forkner, of Forkner Realty Company, that the lessee desired to renew the lease for an additional ten years, as permitted by the instrument. Forkner Realty Company is named as agent for the lessor in the lease agreement and William C. Forkner for many years prior to June 1, 1965, discharged that company's agency responsibilities under the lease agreement.
Upon being informed of the lessee's desire to renew, as permitted by the lease agreement, Forkner informed the lessee's agent that he would prepare the renewal lease and forward it for execution.
Prior to June 1, 1965, Forkner, by telephone, informed the lessor of the lessee's notice of election to renew the lease, and asked the lessor if he wished to renew for a term beyond the original option period. The lessor stated that he did not. Forkner then told him that he would prepare the renewal lease and forward it for execution. Pursuant to the lessee's notice of election and his own conversation with the lessor, Forkner prepared a renewal lease for an additional ten year term. Prior to June 30, 1965, the lessee executed such renewal lease and on June 28, 1965, Forkner forwarded it to the lessor. By letter dated June 29, 1965, the lessor notified the lessee that he would not execute the lease since he did not receive written notice of the lessee's election to renew, as the lease required, and that he would consider him a tenant at will for the same rental figure he had been paying.
Thereafter, the lessee forwarded to Forkner the July rental of $450, as required by the renewal and the original leases. After deducting its commission, Forkner's firm forwarded the balance of that payment to the lessor. But by letter of July 8, 1965, the lessor returned the check to that firm, and stated that it was no longer his agent. By letter dated July 13, 1965, the lessee forwarded to the lessor a check in the amount of $450 for July rent and insisted that the lease had been renewed. That check has been retained by the lessor. Prior to August 1, 1965, the lessee transmitted to the lssor a check for the August rent, but the lessor returned it.
At the end of the term of the original lease, it had not been canceled, and the lessee was not in default in the performance of any covenant.
Also, the lessee has performed and complied with all the terms, covenants and obligations of the renewal lease, and is ready, willing and able to pay the rent required therein and to comply with all of its covenants, conditions and obligations. While it appears useless to tender further rent, the lessee hereby offers, during the pendency of this action, to pay into court any rental or other sums required.
The foregoing, it is alleged, shows clearly that the lessee exercised the option to renew the lease; that the lessor, prior to June 1, 1965, was aware of such exercise of the option; and that written notice thereof, if required by the original lease, was waived by the lessor.
Dispossessory proceedings have been instituted by the lessor against the lessee to recover the leased premises, and the lessee has filed counter affidavit and bond therein.
The drive-in theatre involved here, in its almost ten years of operation, has established good will and going concern value at its present location, in addition to the value created by the improvements referred to above. If written notice of exercise of the option to renew was required by the lease agreement the deviation therefrom was slight, the notice was timely, and the lessor was not damaged because of the form of such notice. His effort to enforce a forfeiture of the covenant to renew under such facts...
To continue reading
Request your trial
-
LeCraw v. Atlanta Arts Alliance, Inc.
...Saunders v. Sasser, 86 Ga.App. 499, 71 S.E.2d 709; Colonial Stages South, Inc. v. Joel, 50 Ga.App. 209, 177 S.E. 525; Storey v. Austin, 221 Ga. 692, 146 S.E.2d 728; Citizens Oil Co., Inc. v. Head, 201 Ga. 542, 40 S.E.2d 559; Smith v. Huckabee Properties, Inc., 111 Ga.App. 451, 142 S.E.2d 32......
-
Matter of Joyner
...had actual knowledge of the lessee's intent to exercise his option to extend under the lease agreement. See, e.g., Storey v. Austin, 221 Ga. 692, 146 S.E.2d 728 (1966) (court found that oral notice was a slight deviation from the requirement of written notice because the evidence showed tha......
-
Kusuma v. Metametrix, Inc.
...well-recognized that a party to a contract "may waive contractual provisions for his benefit." 17A C.J.S., supra; see Storey v. Austin, 221 Ga. 692(1), 146 S.E.2d 728; C.P.D. Chem. Co. v. Nat. Car Rental, etc., 148 Ga.App. 756(1), 252 S.E.2d "A waiver may be express, or may be inferred from......
-
Barton v. Chemical Bank
...the other party to the contract fails to perform a condition will be estopped from later asserting the condition. In Storey v. Austin, 221 Ga. 692, 146 S.E.2d 728 (1966), the lessor attempted to deny renewal of a lease because the lessee failed to give written notice as required in the leas......