129 Ga. 623 | Ga. | 1907
J. S. Bailey leased a portion of a building in Way cross, owned by bira, to A. C. and L. E. Gortatowsky as an opera-house. The contract was dated March 31, 1903, and provided for leasing the theatre for one year from April 1, for the sum of $200. It contained this provision: ■ “The said Gortatow
It is clear from the evidence that the lessees desired to retain the property, and that Mrs. Parker, or her agent, desired to get possession of it. The whole procedure was apparently aimed, not to obtain payment of the rent, but to secure a forfeiture of thé lease. Forfeitures are not favorites of the law. Has the plaintiff, or her agent, succeeded in securing one now? We think not. When the former ease, brought by the same plaintiff in. the effort to recover possession, was before this court (127 Ga. 560), we held that the Gortatowskys had exercised the option to renew the lease for the two years after the first had expired; that Mrs. Parker, who bought from Bailey, took subject to their rights; and that she could not recover possession from them. The evidence shows without conflict that on the day when that case was decided in their favor in the superior court, one of the defendants tendered to the husband and agent of the plaintiff the rent for a year in cash, which he declined to receive. The
The suit repudiating the lease and seeking to recover the property was not at an end before the remittitur was filed, at least. Perhaps entering judgment on it may not have been the duty of the losing party. The announcing of the decision of the Supreme Court did not close the record. So that, before it was ended, the effort to recover the property by dispossessory proceeding was premature.
Again, in the former decision in 127 Ga. 560, the time when the annual rent for the renewal of the lease fell due was not determined. Generally where a lease is made for one or more years, at a stipulated annual rental, without specifying when the •rent is due, it is not due until the end of the year, or of each year. 24 Cyc. 1170, and cit.; 18 Am. & Eng. Enc. L. 270, and cit. In the present record the time for payment of the first year’s rent does not appear. The report of the former case, in the 127 Qa., states that four notes were given for the rent of that year; but the renewal provided for was at $300 per year, without specifying any time or times for payment. The rent was therefore payable at the end of each year from the beginning of the renewal, namely April 1, 1904. The demand included rent for three years, the last beginning April 1, 1906. Hence the demand made in March, 1907, was before the rent for that year was due; and the proceeding to dispossess, based in part on a failure to pay such rent, was premature for that reason also..
Still further, not only was rent demanded, but interest on it, calculated from the first of each rent year. Under the ruling just above made, interest ran on the rent only from the lime when it was due. ■ The waiver of tender by refusal to receive rent
For the reasons above stated no recovery could be had by the plaintiffs in the dispossessory proceedings; and there was no error in directing a verdict for the defendants.
Judgment affirmed.