127 Ga. 560 | Ga. | 1907
Lead Opinion
(After stating the foregoing facts.)
There was conflict in the evidence as to what was said to Parker, the plaintiff’s husband and agent, about the lease, before the purchase was made. But he admitted himself that he knew that the Gortatowskys had had a lease upon the theater, and that the keys were in the hands of Brinson, their local manager, the theatrical season having closed; and that he made no inquiry of Brinson as to the manner of his holding, or the lease to the Gortatowskys. According to his own evidence he was put on inquiry, but failed to inquire, and was chargeable with notice of whatever facts in regard to the matter would have been developed by inquiry of Brinson. In the absence of such inquiry, it may be presumed that, had it been made, the right under which Brinson held would have been discovered, or Parker’s attention would have been directed to the rights of the Gortatowskys. “Ignorance of a fact, due to negligence, is equivalent to knowledge in fixing the rights of parties.” Civil Code, §3933; Austin v. Southern Home Asso., 122 Ga. 439. [Relatively to the rights of the Gortatowskys, therefore, the purchaser stood in no better position than Bailey. Under the lease the lessees, at the termination of the first year, were to have the option of leasing the theatre at $300 per annum, for a term of two years, with a further option at the termination of that lease. Before the termination of the first year they notified the owner by letter that they would “continue the theatre;” and he acknowledged receipt of the letter, and stated that he understood this to mean that they would continue the rent of the opera-house “as per terms
The only matter which suggests itself as being desirable to make clearer would be the time when the rental of $300 was payable. The former rent had been payable in instalments; and if it had been provided that the rent for the additional term should also be paji-able in instalments, and that the times and amounts of the instalments remained to be agreed upon, there would have been no-perfect contract. But where an agreement is made to rent property for a year for $300, expressed in one sum, without more, the natural construction is that it should be paid at one time. The question is not directly involved here whether such rental was payable at the beginning of the year or at the close; but if it be-treated as payable at the first of- the rent year, the conduct of the parties was such as to prevent a forfeiture from resulting by reason of delay. The conduct of Bailey, the original owner, has been mentioned above. It appears also- that he was absent from the State for at least a portion of the time. Parker testified: “I told them I would not accept $300 rental for the opera-house.” The lessees had previously paid their rent when due, and there was nothing to ‘indicate any inability on their part to pay the rent in the future. Irwin v. Askew, 74 Ga. 582; Biggers v. Pace, 5 Ga. 171, 175; 28 Am. & Eng. Enc. Law (2d ed.), 8. If they paid the rent, the lessees were entitled to the additional term of two years, as specified in the lease. “The covenant on the part of the lessor to renew is a covenant real, the burden of which rests with the reversion, and may therefore be enforced against the grantee of the reversion.” 18 Am. & Eng. Enc. Law (2d ed.), 694.
While, in this State, “all renting or leasing of such real estate for a period of time less than five years shall be held to convey only the right to possess and enjoy such real estate, and to pass no estate out of the landlord, and to give only the usufruct, unless the con
Judgment affirmed.
Rehearing
ON MOTION ROE REHEARING.
The inquiry referred to in the headnotes, which Parker failed to make, was from Brinson, who Parker knew had the keys. If the expression that he made no inquiry, used in the headnotes, might be construed to mean that there was no evidence that he made any inquiry from any one, we think the opinion makes it clear that he made no inquiry from Brinson when he should have made it. A mere general statement that “sometime before” he had talked to Brinson and asked how the latter would like to go in with him and help him run the house if he bought it, and that after at first considering the matter favorably, Brinson then declined, was not enough. It did not appear when .this was, whether before or after the Gortatowskys had exercised their option, or even during Brinson’s agency. Nor did it appear that the proposed arrangement was to take place at once, or conflict with the Gortatowskys’ lease. When Parker was put on inquiry from Brinson, this was not met by inquiry from Bailey. Bailey denied Parker’s account of this. But taking Parker’s own evidence, he was, in law, put on the duty of making an inquiry from Brinson, which he did not make. ■ Motion denied.
