171 Ga. 827 | Ga. | 1931
Mrs. Cora R. Richards brought suit against Plaza Hotel Inc., and Thomas Getzen, alleging as follows: For some years past the plaintiff conducted a restaurant in the City of Augusta, its location during the year 1928 being on Jackson Street. The Plaza Hotel Inc. operates a hotel in that city under the management of Getzen as general agent in full charge. Petitioner was approached, in December, 1928, by the Plaza Hotel Inc., acting through Getzen as manager, with the proposition to give up her business on Jackson Street and move over and operate a restaurant in the dining-room of said Plaza Hotel, proposing to lease her the dining-room, kitchen, fixtures, etc., for three years, and in payment of rent therefor petitioner was to furnish meals to Getzen and his wife, and the hotel was to execute to her a lease o'n these terms, which lease would include water, lights, telephone, etc., and a private room for her in said hotel. She accepted these terms, gave up her business as keeper of the restaurant on Jackson Street, and went into possession of said Plaza restaurant, dining-room, fixtures, kitchen, and personal room, as offered, on or about January 18, 1929, Getzen as manager putting her in possession and stating that he would have the lease fixed up as agreed upon. Mr. Hooks, the president of the Plaza Hotel, was not there at the time, but petitioner was informed by Getzen that he would execute the lease upon his arrival in the city. Petitioner complied with her part of the agreement, and about January 28, 1929, inquired of Getzen for the lease, and he again replied that he was waiting for Hooks to come over from Macon where he lived, that the hotel was for sale, and in case it was sold it would be better for her to have Hooks’ signature to the lease. Subsequently the same reply was made to other inquiries about the lease. On August 23, 1929, petitioner was requested in writing by Getzen, as manager, to vacate the Plaza Hotel dining-room and the room which had been assigned to her, not later than Saturday August 31, 1929. She conferred with
Plaza Hotel Inc. filed a general demurrer. The court sustained it and dismissed the petition, and the plaintiff excepted.
The question in this case is whether under the facts alleged the plaintiff was a mere tenant at will of Plaza Hotel Inc., or whether, having fully performed a contract (not reduced to writing) which entitled her to a lease of three years to the possession and use of the restaurant in the Plaza Hotel, she was not also entitled to have a decree of specific performance of the alleged contract. The lower court held that the petition did not set forth a case entitling the plaintiff to any equitable relief. There are some grounds of special demurrer which the court perhaps could have properly sustained; but we are of the opinion that there are several reasons why it was error to dismiss the entire petition. Statements of fact which are properly pleaded must, for the purpose of demurrer, be admitted to be true; and while in the construction of all pleas it is true that they are to be construed strictly against the pleader, it does not follow that the striking of a portion of the pleadings always results in destroying an equitable cause of action. To the petition in this case Plaza Hotel Inc. demurred on the grounds of no equity, no cause of action; that G-etzen had no authority to bind the hotel company by his contract; that it was too vague and uncertain to
In one of the earliest cases’ in the reports of this court (Henderson v. Touchstone, 22 Ga. 1), where the issue concerned the sale of a negro, it was ruled that where a verbal preliminary agreement was for a written contract which may be executed within a year, such transaction was not within the statute. In Steininger v. Williams, 63 Ga. 475, it was held an oral contract (italics ours) for rent, accompanied by change in possession and payment of rent, is not within the statute, but will be enforced as made, as not to do so would be a fraud. In that case Mr. Justice Jackson, delivering the opinion of the court, said: “Besides, Steininger was in possession under the contract two months, and paid rent thereon, according to plaintiff’s evidence, and therefore the contract was executed.” (According to plaintiff’s petition, she was in possession seven months of the Plaza Restaurant, and paid rent thereon for that period.) “It was part performance, and to break it would operate to the injury of plaintiff, depriving her of opportunity to rent;” citing cases. Continuing, Judge Jackson said: “The main question was for the jury, and they have decided it. It is, was there actually a contract for rent, or a mere promise to contract at a future day? If the former, the remedy by distress is good; if the latter, there should have been a suit for damages for the deceit or failure to make the contract. In either event, the figure the defendant would make in a court of justice is not to be envied.” Specific performance of a parol contract where the title to land is conveyed will be decreed in many eases.- The same principle will prevent a landlord “who has made a contract with a tenant to hold possession for a term,” who has done certain things on the rented property, “from claiming, at the end of that year, that it is a tenancy at will, and from summarily ousting the tenant.” Petty v. Kennon, 49 Ga. 468; Rosser v. Harris, 48 Ga. 512; Steel v. Payne, 42 Ga. 207. In delivering the opinion in Petty v.
Judgment reversed.