35 Ga. App. 707 | Ga. Ct. App. | 1926
This was a suit in the municipal court of Atlanta to recover the first three months’ rental for a store-building under an alleged lease for a term of five years. The original petition alleged that “on the 8th day of April, 1924, the said Clyde Washburn did enter into a lease contract with your petitioner for a term of five years, beginning the first day of May, 1924, or as soon thereafter as the building herein described was completed, a certain storeroom 25 feet by approximately 175 feet, in a building located on the northeast corner of West Peachtree and Pine streets in the City of Atlanta, Fulton county, Georgia, said building being then in the process of construction, at an agreed rental of $300.00 per month during the first two years and $350.00 per month during the last three years.” The case being in default, it was agreed at the trial term that it should be brought to trial upon its merits, at which term the defendant filed a general and special demurrer, the special demurrer complaining that the contract referred to' in the petition was not set forth. It is alleged in the petition for certiorari that counsel for the defendant then stated that the only purpose of the special demurrer was to obtain a copy of the contract sued on. It appears that thereupon the plaintiff produced the contract in court and informally tendered it as an amendment to the petition. The 13th paragraph of the contract stipulates as follows: “It is understood and agreed that the premises which are the subject-matter, of this written lease have not been completed at the time of the actual execution and delivery of this document, but that said building is under course of construction, and it is of the essence of this agreement that the premises shall be constructed in accord with the plans and specifications existing and prepared by E. C. Seiz. A true and correct copy of plans for the improvement shown on three sheets have been examined by the parties hereto and identified by their
Judgment reversed.