Cravey v. Druggists Co-Operative Ice-Cream Co., 19 S.E.2d 845

Cravey v. Druggists Co-Operative Ice-Cream Co.

19 S.E.2d 845 | Ga. Ct. App. | 1942

Lead Opinion

1. A provision in a lease to allow ten per cent. attorney's fees for the collection of any rent due under such lease does not apply where, without a renewal of the lease, there is a mere agreement between the parties, made before the expiration of the lease, that the tenant could remain and pay for such continued occupancy the amount of monthly rental provided by the contract.

2. A judgment in favor of the tenant in a possessory-warrant proceeding against the landlord, involving the possession of machinery retained by *910 the landlord because he considered such machinery a part of the building in which it was housed and for which he claimed the tenant was due him rent, is not an adjudication as to the tenant's liability for the rent where no issue as to the tenant's liability for the rent was made by the pleadings or was considered and adjudicated. This is true notwithstanding there may be evidence that the tenant owed no rent. Such judgment is not res judicata of the landlord's right subsequently to maintain a suit against the tenant for the rent.

DECIDED MARCH 20, 1942. REHEARING DENIED APRIL 3, 1942. Zack D. Cravey brought suit against Druggists Co-Operative Ice-Cream Company Inc., in which he sought judgment for $2475 as rent for described premises pursuant to a written lease executed by the defendant, together with $247.50 as attorney's fees as provided under such lease. The petition alleged that the plaintiff owned a written lease executed by the defendant under which it agreed to pay $275 per month, and that the defendant was indebted to the plaintiff for rent at the rate of $275 a month from December 1, 1939, to August 31, 1940; that such lease expired on August 31, 1939, but that several months prior thereto the defendant agreed with the plaintiff that it would remain in the premises for several months after the expiration of the lease, and would pay the monthly rental as provided therein for such time as it so remained in the premises; that the defendant vacated such premises about August 16, 1940; that, under the terms of the lease, the monthly rental is due on the first of each month in advance; that the defendant performed such agreement to pay $275 monthly rent after the expiration of the lease for the months of September, October, and November, 1939, but failed and refused to pay such rental for December, 1939, and for the months of January to August, 1940, inclusive; that on November 22, 1940, the plaintiff notified the defendant in writing of his intention to bring this suit, and pursuant to the written lease gave the defendant the term of court to which the suit would be returnable and the date of the return day; that the rent sued for was due, $275 on December 1, 1939, and a like sum monthly seriatim thereafter up to and including October 1, 1940. Attached to the petition as an exhibit was a copy of the lease referred to, which was entered into September 16, 1929, between Massell Realty Company and the defendant for ten years beginning September 1, 1929, which lease provided for the payment of $275 *911 monthly rental in advance during the last five years of the lease period. The lease also provided that the lessee, the defendant, "agrees to pay ten per cent. attorney's fees on any part of said rental that may be collected by suit or by attorney after the same has become due." It was alleged that the plaintiff was the owner of the leased premises as well as the owner of such lease, and that Massell Realty Company transferred such lease on or about May 13, 1931, to Mrs. Ida L. Chamberlain; that Mrs. Chamberlain transferred the lease on June 1, 1935, to Empire Oil Company and that Empire Oil Company transferred it on October 31, 1935, to the plaintiff.

The defendant demurred generally to the petition. The defendant also demurred to and moved to strike that part of the petition and of the prayer which sought to recover $247.50 as attorney's fees, on the ground that the petition on its face shows that the defendant is due the plaintiff no sum as attorney's fees; that the suit is not one in which attorney's fees can be claimed or recovered. The defendant also demurred to the allegations that notice of the plaintiff's intention to sue the defendant was given to it. On the hearing of the demurrer the court sustained the special demurrer and struck from the petition all allegations with reference to the recovery of attorney's fees. To this judgment the plaintiff excepted pendente lite.

The defendant filed a "special plea of res judicata," in which it was alleged that on June 25, 1940, it instituted in the trial court an action in the nature of a possessory warrant against the plaintiff; that judgment was rendered therein in favor of the defendant against the plaintiff; that the action in which such judgment was rendered was between the parties in the present case, and that all matters in issue in the present case between the plaintiff and the defendant were, or could have been, under the rules of law, properly adjudicated in the possessory-warrant case, and that such judgment in the possessory-warrant case was a full and final adjudication of all claims and all causes of action sued on in this case. The plaintiff demurred generally and moved to dismiss the plea of res judicata, which demurrer was overruled. The plaintiff excepted pendente lite.

The issue made by the plea of res judicata came on for trial before a jury. It appeared from the evidence in support of the *912 plea that the possessory warrant was sued out against Zack D. Cravey, by the defendant corporation, for the possession of described machinery which was located in the building on the premises owned by Cravey and which had been rented by the defendant under the lease above referred to; that Cravey had refused to permit the defendant, when it vacated the premises, to remove such machinery therefrom because "there was some back rent due," and because he did not want the building on the premises damaged by the removal of the machinery, which was fastened to the floors and walls, and which he claimed was a part of the realty and could not be removed. Cravey testified in part as follows: "I did not ask for any judgment for any rent. . . I resisted the possessory warrant because I claimed they were due me rent and that they would damage the building if they undertook to remove the machinery which was fastened to the floors and walls."

There was introduced in evidence, over the plaintiff's objection, the affidavit, bond, warrant, and judgment awarding the property to the plaintiff in the possessory-warrant proceedings. There was also introduced in evidence, over the objection of the plaintiff, a brief of the evidence adduced on the trial of the issue made by the possessory warrant. There appears no defense set up by the pleadings by the defendant in the possessory-warrant proceedings. There appears in evidence adduced on the possessory proceeding some testimony from which it may be inferred that the defendant therein, the landlord, and the plaintiff in the present suit, did not claim any rent from the then plaintiff, the tenant, and that no rent was due. There appears nothing whatever in the pleadings and the evidence in the possessory-warrant case to show that the right of the parties therein as respects the title or right of possession to the property was dependent in any manner on any issue as to rent between the parties. The judgment in the possessory-warrant case rendered July 12, 1940, provided that "after hearing evidence as to the question of the possession of the property described in the warrant it is found that the plaintiff is entitled to possession thereof."

The court directed a verdict in favor of the plea of res judicata, and the plaintiff excepted. 1. The court did not err in sustaining the special demurrer and in striking the allegation of the petition with reference to attorney's fees. The lease contract between the parties had terminated. There is no allegation in the petition that there was a renewal thereof or an extension. The allegations are to the effect that the defendant agreed with the plaintiff that it would pay the plaintiff the monthly rental specified by the lease for each month occupied by it after the expiration of the lease. This was not for a definite period, and indicated that the parties at the time of this oral agreement did not know for how many months the defendant would continue occupying the premises. The provision of the lease for the payment of ten per cent. attorney's fees refers to any rent which may become due during the occupancy of the premises by the defendant under the written lease.

2. "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." Code, § 110-501. Granting but not deciding that the issue whether the defendant was indebted to the plaintiff for the rent now sued for could have been determined in the possessory proceedings brought by the defendant against the plaintiff for the possession of machinery which was in the building on the rented premises, and which the plaintiff would not permit the defendant to remove because he claimed back rent to be due, and because he claimed the machinery was so attached to the building as to be a part thereof (see Trotti v. Wyly, 77 Ga. 684; Wadsworth v.Olive, 53 Ga. App. 539, 186 S.E. 590; Garmany v. Rust,34 Ga. 108; Monk v. Gay, 3 Ga. App. 356, 59 S.E. 1117;Tyus v. Rust, 34 Ga. 382), it does not conclusively appear that the judgment for the defendant in the possessory-warrant case was an adjudication that it was not indebted to the plaintiff, Cravey, for the rent now sued for. The burden was on the defendant to show that the question of rent was necessarily or actually determined in the possessory-warrant case. The evidence did not conclusively and with certainty show this.Phillips v. Hightower, 190 Ga. 785, 790 (10 S.E.2d 854);Johnson v. Lovelace, 61 Ga. 62; Hardin v. Douglas,168 Ga. 213 (117 S.E. 506). "A judgment rendered in litigation between the same parties is *914 not conclusive in a subsequent suit between them on a different cause of action, except as to issues actually made and determined in the former litigation." Worth v. Carmichael, 114 Ga. 699 (40 S.E. 797); Draper v. Medlock, 122 Ga. 234 (50 S.E. 113, 69 L.R.A. 483, 2 Ann. Cas. 650).

"If such judgment and extrinsic evidence leave it as a mere matter of conjecture as to what questions of fact were litigated and determined in the former action, the judgment is not an estoppel." Hardin v. Douglas, supra, citing Draper v.Medlock, supra. The foregoing principles apply to a case where there are involved two or more defenses, and it does not appear upon what issue the judgment for the defendant was founded. It appears from the record and evidence that the plaintiff defended the possessory warrant on the ground that he considered the machinery a part of the building which could not be removed without injury to the freehold, and on the ground that the defendant was indebted to him for back rent. He testified that for these reasons he had possession of the machinery and had not permitted the defendant to remove it. The judgment in the possessory-warrant case does not indicate on which issue it was founded, and it was not, under the facts of this case, an adjudication on the question of the liability of the defendant to the plaintiff for rent. Under these circumstances it was incumbent on the defendant, in order to establish an estoppel by the judgment in the possessory-warrant case, if it otherwise was an estoppel or adjudication, to prove by extrinsic evidence that it was founded upon the question at issue in the present suit. See Draper v. Medlock, supra. "Where a question comes collaterally before a court, and a judgment is rendered in the case, and it does not appear except by inference from the judgment and the pleadings [and evidence] that the question collaterally made was actually passed upon, the judgment will not be conclusive on the trial of another case between the same parties involving the same question." Barnes v. Brown,133 Ga. 451 (66 S.E. 156).

The issue as to any indebtedness for rent was not actually put in issue in the possessory-warrant proceedings, and under the rules of law such could not have been put in issue in that proceeding. On the trial of a possessory warrant, as stated in Code § 82-202, "possession is the only issue to be tried." Mann v. Waters, 30 Ga. 207, 209; Trotti v. Wyly, supra. It follows that the issue as to *915 rent was not presented unless it was actually litigated in such proceedings and determined in the judgment. Such issue was not adjudicated in the possessory-warrant proceedings.

Nothing here is in conflict with Tyus v. Rust, supra,Garmany v. Rust, supra, and Jenkins v. Flournoy,157 Ga. 618 (122 S.E. 309). In these cases the issue of indebtedness was actually presented and adjudicated.

It was not error to admit in evidence the pleadings and the evidence in the possessory-warrant proceedings, or to overrule the general demurrer to the plea of res judicata. The court erred in sustaining the plea of res judicata, and in directing a verdict therein for the defendant.

Judgment reversed in part and affirmed in part. Sutton, J.,concurs.

Concurrence Opinion

I concur in the ruling in division 1 of the opinion. The special plea was in reality a plea of estoppel by judgment, and did not allege specifically and unqualifiedly that the matters in issue in the instant case were actually adjudicated in the former case. I think the demurrer to the special plea should have been sustained.