White v. Lawrence
| Decision Date | 20 November 1909 |
| Citation | 133 Ga. 528,66 S.E. 171 |
| Parties | WHITE. v. LAWRENCE. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
Error from Superior Court, Richmond County; H. C. Hammond, Judge.
Equitable petition by Bryan Lawrence against J. B. White. Judgment for plaintiff, and defendant brings error. Reversed.
This case grows out of a lease between the parties covering property in the city of Augusta, Ga., known as the "Albion Hotel." One branch of the litigation was previously before this court, the decision in which willbe found reported in 131 Ga. 840, 63 S. E. 631, 19 L. R. A. (N. S.) 966. The present phase of the litigation originates in an equitable petition filed by the defendant in error (who will hereinafter be referred to as the plaintiff) in Richmond superior court against the plaintiff in error (who will hereinafter be called the defendant). A summary of the substantial allegations of this petition is as follows: On February 7, 1901, the plaintiff leased from the defendant the hotel property for five years, with privilege of renewal for a like period, which right he had exercised. The monthly rental of $833.-33 accrued on the 20th and was payable the 1st of each month. He believed he was entitled to an abatement of the rent on account of being deprived of the use of the bar in the hotel by reason of the enactment of what is known as the prohibition law, and proposed to arbitrate the matter under a clause appearing in the lease. He did not pay the monthly installment due February 1, 1908. The defendant declined the offer to arbitrate, and on February 6, 1908, sued out a distress warrant for the monthly installment of rent accruing on January 20, 1908. To this distress warrant the plaintiff filed counteraffidavit, and gave the bond required by statute. At the time this distress warrant was sued out, there was pending in the superior court of Richmond county an equitable petition filed by the defendant against the plaintiff, asking judgment for $10,000 and interest, for the rent of the hotel premises from August, 1906, to August, 1907, in which litigation plaintiff was seeking a recoupment against the defendant to the amount of $743.98 in excess of the latter's claims. Also there was in process of accumulation, but not yet due, a heating bill for the season of 1907-08, on which plaintiff had expended a large sum of money for which he would be entitled to exoneration from the defendant to the extent of about $1,500. At the time this warrant was sued out the plaintiff in good faith desired to have adjudicated his right to an abatement of the rental of the hotel premises on account of the closing of the bar. On March 6th, after suing out the distress warrant, the defendant informed the plaintiff that another monthly rental of $833.33 had been due since February 20th, and that defendant desired to make a formal demand for said property, saying that defendant was "not willing to allow all the rental due him for the Albion Hotel to be held up indefinitely by litigation, or by refusal to pay same." Plaintiff replied that he was willing to continue paying monthly rental under protest, with the understanding it was not to prejudice the right of abatement in the rent he was claiming. Thereupon, without making any reply, the defendant on April 15th notified the plaintiff that the lease was forfeited, and demanded possession of the premises, and on April 16, 1908, took dispossessory proceedings under Civ. Code 1895, § 4816, against the defendant as a tenant holding over, to which proceedings the defendant interposed counteraffida-vit and bond. Thereafter, on June 9, 1908, the plaintiff filed in Richmond superior court a bill in equity, seeking a modification of the rent contract in accordance with the changed conditions of law, and asking an equitable abatement of the rent. On the same day on which the dispossessory warrant was sued out the plaintiff sent the defendant a check for the rent, conditioned upon its being accepted subject to the prosecution in the courts by the plaintiff of his contention that he was entitled to an abatement of the rent. The defendant declined to accept the check unless the plaintiff abandoned this right. Thereafter, as speedily as the plaintiff could do so, he brought to a hearing his bill in equity to modify the contract and abate the rent, and on July 1, 1908, the superior court passed an order denying the relief prayed, but granted a further order restraining proceedings under the distress and dispossessory warrants until plaintiffs appeal to the Supreme Court was determined. The Supreme Court on February 11, 1909, affirmed the decision of the lower court; and within a reasonable time thereafter, on April 8, 1909, the plaintiff wrote the defendant that, any right to abatement of rent having been decided against him, he was ready to pay the rent accrued, with interest, and on April 15, 1909, he tendered the defendant a certified check for $13,046.77 in full of accrued rent, with interest, to April 20, 1909. The defendant refused the tender, and insisted on double rent since April 15, 1908, the date the lease was declared forfeited. The defendant is now threatening to proceed with his warrant for eviction and for the recovery of the penalty of double the amount of the stipulated rent, is vigorously prosecuting said warrant, and has notified the plaintiff that he will demand a trial of the same at the session of the superior court commencing April 26, 1909. Since January 1, 1908, the plaintiff has been at all times ready, willing, and able to pay the monthly installments of rental upon the sole condition that in making said payments he did not forfeit or relinquish his right to have the question of abatement of rent adjudicated in the courts. The defendant has uniformly denied him the right to have this question adjudicated by arbitration or in the courts, and refused to accept the payment of rent unless the plaintiff totally abandoned his right to have the question of abatement adjudicated by the court. He is now willing to pay, and makes tender into court of, $13,047.77, the amount due, principal and interest, down to and including April 20, 1909. The matters and things set forth cannot be defended in a statutory proceeding, but furnish simple ground in equity to restrain the prosecution of the distress and eviction warrants; and, unless such relief is granted, ne will be irreparably damaged. The bill prays an injunction againstthe further prosecution of said warrants. By an amendment the plaintiff alleged that he had received an offer for the lease of the Albion Hotel, which the defendant would not allow him to accept. During an entire 12 months, and for many other periods during the continuance of the lease, there being matters in dispute between the plaintiff and the defendant, the plaintiff had refused to pay rent, and never during this time did the defendant pretend or claim to exercise any right of forfeiture. The prayers of the petition were also amended, the plaintiff asking that, upon the payment by him of the entire amount of principal, interest, and costs of the proceedings had by the plaintiff for rent, the proceedings of ejectment under the dispossessory warrant be abated and dismissed, and that, upon payment of the principal and interest of the amount due by him for rent the period In which the enforcement of the legal process was restrained by the courts, it be held to be a full settlement of all legal claims of the defendant against him for rent during said period.
To the petition the defendant demurred and filed his answer, setting up in his demurrer: There was no equity in the petition. The plaintiff had an adequate remedy at law. It affirmatively appeared from the petition that the plaintiff was not entitled to an Injunction or equitable relief. Irrespective of the set-offs claimed, it affirmatively appeared that the plaintiff was indebted to the defendant for rent at the time the distress warrant was sued out on February 6, 1908. It affirmatively appeared that the plaintiff was indebted to the defendant for rent accruing subsequently to the distress warrant, for the months of February and March, 1908, and that the defendant was legally entitled under the statutes to the possession of property at the time demand therefor was made, and that the dispossessory warrant was properly issued and defendant entitled to a judgment thereon in his favor. After plaintiff had failed to pay the rent when due and to surrender possession of the property, and the dispossessory warrant had been sued out and counteraffidavit filed, the defendant could not be deprived of the right of possession by a subsequent payment of rent, and the allegation of its tender was an admission that it was due and unpaid and of defendant's right to a verdict on the possessory warrant. It affirmatively appears that the issue presented by the petition has been adjudicated adversely to the plaintiff and the matters set up are res judicata. On May 4, 1909, the court, after hearing evidence of both parties, passed an order restraining the further prosecution of the warrant of eviction sued out April 16, 1908, and enjoined the defendant from further attempting to disturb the quiet and peaceable possession of the Albion Hotel property under the lease. The order was conditioned that the plaintiff renew his tender of all rent due and continue promptly to tender the monthly rental of $833.33, and pay all costs of the proceedings to date of the order and the costs of the dispossessory proceedings in Richmond superior court, and that he strengthen the bond already executed In the dispossessory warrant proceedings, and file the same in court within three days. The order further provided that, notwithstanding the injunction granted, the plaintiff might have the right, if he saw fit, to bring the dispossessory warrant proceedings to trial before a jury under the rules of court in force for the assignment of trials.
Lamar &...
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