Weed v. Lindsay

• Decision Date: 11 January 1892
• Citation: 15 S.E. 836,88 Ga. 686
• Parties: WEED v. LINDSAY et al.
• Court: Georgia Supreme Court

15 S.E. 836

88 Ga. 686

WEED v. LINDSAY et al.

Supreme Court of Georgia

January 11, 1892

Syllabus by the Court.

Tenants being admitted into possession under a written contract for a lease for the term of 10 years, cannot, after refusing to execute and accept a lease tendered by the landlord, and embracing the terms and conditions specified in the written contract, retain possession of the premises, because the landlord has not complied with the contract in the construction and finish of the building which he was to erect for occupation by the tenants. The landlord's violation of his contract would furnish a cause of action in favor of the tenants for the damages sustained thereby, but would not operate as a license to occupy and use the premises. After refusal to execute and accept the lease tendered, they would be mere tenants at will, and, after two months' notice would be subject to eviction, by summary proceedings provided by statute, as tenants holding over.

Error from city court of Savannah; W. D. HARDIN, Judge.

Summary proceedings by Joseph D. Weed against Lindsay & Morgan to obtain possession of certain land. Judgment for defendants. Plaintiff brings error. Reversed.

Tenants who were admitted into possession under a written contract for a lease, after refusing to execute and accept a lease embracing the terms and conditions specified in the written contract, were not entitled to retain possession of the premises, because the landlord did not comply with his contract in the construction and finish of a building which he was to erect for their occupation; and they thereupon became mere tenants at will, and, after two months notice might be evicted by summary proceedings as tenants holding over.

The following is the official report:

On October 15, 1890, Weed obtained a warrant to dispossess Lindsay & Morgan of certain real estate in Savannah, alleging in his affidavit therefor that the property was rented to Lindsay & Morgan, who took possession in October, 1889, as tenants at will; that on April 8, 1890, he gave them notice that he desired the possession of his said property at the expiration of two months after the notice; that by this notice, and the expiration of time, the tenancy was terminated and the lease expired; and that afterwards they refused to deliver the possession to him. The defendants, by their counter affidavit, averred that their lease or term of rent from plaintiff had not expired. The jury found for defendants, and plaintiff's motion for a new trial was overruled, to which he excepted. In addition to the general grounds of the motion that the verdict was contrary to law, evidence, etc., it was alleged therein: The court erred in admitting parol evidence to establish a verbal contract on the part of plaintiff to erect a building of specific character and dimensions, not set out in the written contract between the parties, without any allegation in the pleadings that said particulars were intended to be included in the contract, and were omitted by either fraud, accident, or mistake, plaintiff objecting to the introduction of this parol testimony on the grounds that it was irrelevant; that it was not covered or suggested by any pleadings filed in the case; that it was an attempt to add and to vary a written contract by parol; that it set up an agreement concerning land which the statute required to be in writing; and that it presented issues involved in a suit between the parties pending in the superior court of Chatham county. (The case was tried in the city court of Savannah.)

Also that the court erred in refusing to charge the following written requests by the plaintiff: "The written contract between the parties reads as follows: 'Savannah, Georgia, 4th June, 1889. I am to erect a four-story building sixty feet or more front, and Messrs. Lindsay & Morgan agree to pay me four thousand dollars per annum net, if the cost of the building at six per cent., with a valuation of forty thousand dollars for the lot, viz., lot number one, Eyled tything, Heathcote ward, does not exceed that amount. If it does, then Lindsay & Morgan are to pay Joseph D. Weed six per cent. on the cost, including above valuation of lot. Lindsay & Morgan are to pay all taxes, keep the building in repair, and keep building insured for its cost. Upon these conditions Joseph D. Weed agrees to give them a lease for ten years from the date the building is ready for occupation. [Signed] JOSEPH D. WEED. [Signed] LINDSAY & MORGAN.' I charge you that the contract I have read was not a present demise or lease which granted to Lindsay & Morgan an immediate estate for years out of the estate of Joseph D. Weed, (Code, § 2278;) but was a contract to give them a future lease for ten years from the date when the building to be constructed was ready for occupation. If you find from the evidence that on June 4, 1889, a contract in writing was made between the parties to this suit, by which the said Joseph D. Weed agreed, upon the terms and conditions therein stated, to give to the said Lindsay & Morgan a lease of the premises described for ten years from the date when the building was ready for occupation; and further find that, before the said building was completed and ready for occupation, the said Lindsay & Morgan, by an arrangement made with the contractor who was erecting the building, and with the consent of the said Joseph D. Weed, began to store their goods therein, and to occupy the same in part before its completion; and further find that after the said building was completed, in November thereafter, the said Joseph D. Weed tendered to the said Lindsay & Morgan, then in the occupation of said building, a written lease of the same for ten years, and that said Lindsay & Morgan objected to the said lease, and refused to sign or execute the same; and that no lease has ever been made or given to the said Lindsay & Morgan for said building, other than the assent of the said Joseph D. Weed to their occupation of said building before completion under an agreement to give them a ten-years lease when said building was ready for occupation; and that no rent has ever been paid by the said Lindsay & Morgan or received by the said Joseph D. Weed,--then I charge you that the occupation of said building by said Lindsay & Morgan was a tenancy at will, and that they became tenants at will to said Joseph D. Weed. I further charge you that, under the Code of Georgia, two months' notice is necessary from the landlord to terminate a tenancy at will. Code, § 2291. If you find that on the 8th day of April, 1890, the said Joseph D. Weed gave notice to the said Lindsay & Morgan that he desired to terminate said tenancy, and to quit the occupancy and possession of said property after the expiration of two months thereafter, to wit, on June 13, 1890, and that on said June 13, 1890, demand was made for said premises by the said Joseph D. Weed, and was refused by said Lindsay & Morgan, then I charge you that said notice terminated said tenancy; that the said Joseph D. Weed became thereafter entitled to the possession of his said property; and that your verdict must be for the plaintiff."

Also that the court erred in charging: "If Mr. Weed understood the contract in one particular way, and Messrs Lindsay & Morgan understood it in another particular way; if Mr. Weed knew the way Lindsay & Morgan understood it, and did not correct it,--then that would be the contract that would be binding;" the said charge being obscure in not making it clear to the jury whose understanding would be binding, and there being no evidence to show that Mr. Weed understood the said contract in the particular way that Messrs. Lindsay & Morgan understood it. "The contract in writing is an exceedingly meager one, and is therefore necessarily to be explained by oral testimony. The contract is this as it is written: 'Savannah, Ga., June 4, 1889. I,'--and you will notice that it is signed by Joseph D. Weed and by Lindsay & Morgan. That first word is an ambiguity, it being perfectly apparent on the face of said contract that 'I' referred to said Joseph D. Weed, and there being no ambiguity as to the party intended thereby. It is for me to say to you what this written instrument means, and to say whether or not it is complete, and whether or not oral testimony should come in; and having declared that this is an incomplete and unintelligible contract as it stands, without explanation; that there is an open patent ambiguity in it which may be interpreted two or three or more different ways; and that there are, from the circumstances surrounding it, other ambiguities,--I have allowed oral testimony to explain it. This paper is not a lease, and yet they (meaning Lindsay & Morgan) may hold under it, and it may act as if it were a lease; it may be as binding as a lease; it may take the place of a lease under some circumstances. The view which I hold of this contract is this: The parties entered into or upon these premises under an agreement for a lease. If the agreement had never been carried out to make a lease, if the parties had occupied the building, and the building was such as they had the right to expect, and if they paid up the rent, and Mr. Weed had accepted the rent, and a lease had never been made, then this paper would have stood in the place of a lease. They would have been tenants for the length of time mentioned in this paper, and they would had this paper as by its terms to govern the holding which they had. If, however, they failed to pay the rent...