1. The court did not err in overruling the general demurrers to the petition.
Savannah Iron & Wire Works, Inc. (hereinafter called the plaintiff) sued Housing Authority of Savannah (herein after called the defendant). We deem it expedient to set out the pleadings substantially and somewhat in detail, and in chronological order. The petition shows: "1. The housing Authority of Savannah, defendant herein, is a public body corporate and politic, created under the authority of and pursuant to the Housing Authorities Law of 1937, with its office and principal place of business in Savannah, Chatham County, Georgia.
"2. Under its charter the Housing Authority of Savannah is capable of being sued.
"3. Plaintiff herein, Savannah Iron & Wire Works, Inc., a corporation created under the laws of the State of Georgia, is engaged in the manufacture, production and erection of iron and metal products, including ornamental iron work.
"4. Defendant has endamaged plaintiff as hereinafter described and is liable to plaintiff in the sums set forth by reason of its taking and appropriation for public housing purposes of plaintiff's property, to wit: the valuable leasehold interest hereinafter described, without paying just compensation therefor.
"5. Prior to December 1st, 1952, plaintiff conducted its operations in a building and improvements known as 234-238 East Broad Street in the City of Savannah, located on Lots 10, 11 and 12, Crawford Ward, East. Said property was leased by plaintiff from E. J. Wilson and H. W. Dabney under a lease dated July 1, 1949, with option for renewal thereof for an additional period of 5 years. The monthly rentals provided in the aforesaid lease were $200.00 per month during the first year and $250.00 a month thereafter, including the period of any renewal thereof. The lease was entered into between E. J. Wilson and H. W. Dabney as owners of the premises and improvements described and Hugh R. Papy and Albert M. Morena and was assigned to Savannah Iron & Wire Works, Inc. by written instrument, dated August 1, 1951, which was approved by the landlords. A copy of the lease and of the assignment thereof is in possession of the defendant.
"6. Defendant purchased the said lots and improvements from E. J. Wilson and H. W. Dabney by deed dated March 1, 1952, subject to the leasehold interest therein of Savannah Iron & Wire Works, Inc.
"7. The said lease was duly extended for the additional period of 5 years by notice in writing by plaintiff to the defendant dated April 19, 1952. All rentals due under said lease have been paid and are current.
"8. The building and improvements leased by plaintiff and which it was entitled to occupy until July 1, 1959, were eminently suited to the business needs of plaintiff and plaintiff conducted its operations on said premises successfully. The lease was a valuable property right of Savannah Iron & Wire Works, Inc.
"9. The Housing Authority of Savannah is engaged in the business of clearing, replanning and reconstructing urban areas and providing dwelling accommodations for low income tenants. Among projects of the Housing Authority of Savannah is the Fred Wessels project which is now under construction within the bounds of East Broad, President, Liberty and Randolph Streets in the City of Savannah. The area covered by the Fred Wessels Homes includes Lots 10, 11 and 12, Crawford Ward, East, leased by plaintiff herein.
"10. Sometime during the year 1951 the exact date thereof being unknown to plaintiff but well known to defendant, the Housing Authority of Savannah announced a plan for the development as a public housing project of the area described in Paragraph 9 hereof.
"11. On February 13, 1952 defendant through its Executive Director, W. H. Stillwell, informed plaintiff by letter that it wanted to get possession of the property leased by plaintiff 'in the not too distant future.' Plaintiff advised Savannah Housing Authority by letter on February 13, 1951, that the property leased by it was splendidly suited for its business purposes and that much expense and loss would be incurred in leasing equivalent quarters, but that it would be willing to negotiate in connection with the taking of its leasehold interest.
"12. On April 10, 1952, Housing Authority of Savannah notified plaintiff in writing that it proposed to begin demolition of the area in the latter part of June and desired possession of the business site of plaintiff on or before July 10, 1952. It advised petitioner that its negotiator would keep in touch with plaintiff. On May 29, 1952, plaintiff was notified that a contract for demolition had been let and that within two or three weeks it would be necessary to demolish the building leased by plaintiff.
"13. Pursuant to the said demand of defendant for possession and without any waiver of its right to just compensation which defendant stated it would later pay, plaintiff endeavored to secure a lease of comparable business quarters.
"14. Plaintiff was unable to find suitable accommodations elsewhere for its business and it became necessary to obtain the financing of new quarters. Plaintiff has leased from the Atlantic Coast Line Railroad Company for a term of years a tract on President Street near Savannah at an annual rental of $605.04. Improvements adequate for the conduct of its business have been erected on said tract. The improvements were largely financed by Seaview Development Company. The total actual cost of the improvements amounted to $74,493.00, and that sum was expended in erecting same.
"15. Plaintiff is paying an annual rental of $6,000.00 to Seaview Development Company for the improvements erected on said land. The true rental value of the improvements and land and the cost to plaintiff in the light of its own considerable investment in such improvements, over and above that of Seaview Development Company, is in excess of $9000.00 per year.
"16. Plaintiff incurred expenses of $8,000.04 in the removal of its equipment, machinery and inventory to the new site.
"17. The removal of plaintiff's business to the new site was completed on or about December 1, 1952. During the said month plaintiff permitted defendant to take complete possession of the property leased by it, without prejudice to its rights to just compensation. Defendant has now constructed housing units, which are nearly completed, on the lots leased to plaintiff and is in permanent possession of the property.
"18. The entry by the Housing Authority of Savannah on the property leased by plaintiff and the occupation of same for the construction of public works constitutes the taking of property within the meaning of Article I, Section III, Paragraph I of the Constitution of the State of Georgia, to wit: 'Private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid.'
"19. Defendant has not paid any compensation to plaintiff for its valuable leasehold interest. It has never made any offer to pay the value of the leasehold interest. It has failed and continues to fail to negotiate with plaintiff.
"20. The taking of the leasehold interest of plaintiff constitutes an implied contract on the part of defendant to pay just compensation for the value of the leasehold interest appropriated and defendant has breached said contract by failing to pay just compensation to plaintiff.
"21. In the absence of condemnation proceedings which defendant was empowered to institute but which it has failed to do so despite request therefor by plaintiff, Savannah Iron & Wire Works, Inc. possesses no remedy other than this action to recover the value of said valuable leasehold interest taken by defendant. Defendant refuses to undertake condemnation proceedings.
"22. The lease was, as herein above alleged, a highly advantageous one. By reason of its excellent location the site on East Broad Street possessed valuable advertising features and a large amount of good will was attached to the business at such location. On the date of said taking by defendant, that is, on or about December 1st, 1952, plaintiff was entitled to occupy said leased premises for an additional period of six years and seven months at a rental of $250.00 per month.
"23. The market value of plaintiff's leasehold interest for the term remaining after the entry and taking by defendant, less the rentals contracted to be paid, is $71,157.49. Plaintiff sues for the recovery thereof.
"24. Defendant is liable to plaintiff in said sum by reason of the taking of said leasehold interest and plaintiff has been endamaged thereby in the sum mentioned.
"25. In addition to the amount referred to in Paragraph 23 defendant is liable to plaintiff in the sum of $250.00 per month for rentals paid to defendant after defendant's entry. Said rentals amount to $2250.00 to date and plaintiff is entitled to the recovery thereof, and of future rental payments.
"Wherefore, plaintiff prays that it have judgment in the sums prayed for in paragraphs 23 and 25 hereof, with interest at 7% per annum on the value of the leasehold interest taken from the date of said taking."
The defendant demurred specially to the petition, as follows: "1. That copies of the lease of July 1, 1949, between Wilson and Dabney and Papy and Moreno, and the transfer of said lease to the plaintiff, Savannah Iron & Wire Works, Inc., on August I, 1951, and the transfer of said lease from Wilson and Dabney to the Housing Authority of Savannah, dated April 1, 1952, all forming the basis of this suit, have not been attached to and made a part of said petition.
"2. Defendant demurs specially to paragraph 14 of said petition alleging the rental of lands from the Atlantic Coast Line Railroad Company and the total cost of improvements erected on said land as being superfluous and irrelevant and should be stricken for the following reasons: (a) Such items are not proper items of damage to be claimed by plaintiff; (b) That said items do not enter into or illustrate in any way the fair market value of the unexpired term of said lease; (c) It is not alleged which, if any, of said items caused plaintiff any loss; (d) That said allegations are irrelevant and are too speculative and remote to form the basis of any recovery against it.
"3. Defendant demurs specially to paragraph 15 of said petition setting out the amount defendant allegedly was compelled to pay as rental for other premises to which it removed its business as being superfluous and irrelevant and should be stricken for the following reasons: (a) That such rentals are not proper items of damage to be claimed by the plaintiff; (b) That said items of rental do not enter into or become a part of the determination of the fair market value of said unexpired term of said lease; (c) And it is not alleged that the payment of said alleged rentals caused plaintiff any loss; (d) That said allegations are irrelevant and are too speculative and remote to form the basis of any recovery against it.
"4. Defendant demurs specially to the allegations contained in paragraph 16 of said petition alleging the costs of removal of equipment, machinery and inventory to a new site as being superfluous and irrelevant and should be stricken for the following reasons: (a) The cost of removal of plaintiff's business, equipment, machinery and inventory is not a proper item of damage to be claimed by the plaintiff; (b) That said items do not enter into or become a part of the determination of the fair market value of said unexpired term of said lease; (c) It is not alleged which, if any, of said items caused plaintiff any loss; (d) That said allegations are irrelevant and are too speculative and remote to form the basis of any recovery against it.
"5. Defendant demurs specially to paragraph 23 of said petition setting out the total amount of damages claimed by the plaintiff and says that the same should be stricken because the total amount of damages are not itemized, and said paragraph does not show how, when and in what manner said $71,157.49 of damages are arrived at.
"6. Defendant demurs to the petition of plaintiff on the grounds that the same is duplicitous, vague and indefinite in the following particulars: that paragraph 17 of plaintiff's petition alleges 'plaintiff permitted defendant to take complete possession of the property leased by it', whereas paragraph 20 of said petition alleges 'The taking of the leasehold interest of plaintiff constitutes an implied contract on the part of defendant to pay just compensation for the value of the leasehold interest appropriated.' Defendant says that plaintiff should choose which of these conflicting allegations it will stand on.
"Wherefore defendant prays that the plaintiff's petition be dismissed forthwith."
The plaintiff filed an amendment to the petition, adding language so that paragraph 16 would read as follows: "16. Plaintiff incurred expenses of $8,000.94 in the removal of its equipment, machinery and inventory to the new site. The allegations and expenses set forth in this paragraph and in paragraphs 14 and 15 are not pleaded as damages for which recovery is sought but are pleaded by way of background and as illustrative of the value of plaintiff's leasehold interest to the end of the term in the light of the cost of rental of a comparable business site."
"1st. The matters and facts and allegations in plaintiff's petition do not constitute or set forth any cause of action against this defendant.
"2nd. The allegations of the 13th, 17th and 20th paragraphs of plaintiff's petition show that plaintiff is suing for a breach of a contract which contract was entered into between plaintiff and defendant, and the allegations of said petition do not set forth any damages of any kind which plaintiff would be entitled to recover for a breach of contract."
On the same date, the defendant filed the following special demurrers:
"The plaintiff in the above entitled cause having amended its petition on November 6th, 1953, after defendant had specially demurred to the plaintiff's petition, now comes the defendant subject to its general demurrer filed in said cause, and renews all of its previous grounds of special demurrer to the said petition of plaintiff as amended, and for additional grounds of special demurrer says:
"1st. Plaintiff has undertaken to set forth two different causes of action in its petition, one for breach of contract in paragraphs 13 and 20 and another for the taking of its property by the right of eminent domain as set forth in paragraphs 18 and 24, and the said petition is therefore duplicitous and defective, and plaintiff must select under which form of action it will proceed and strike from the petition the form of action which conflicts with the form of action it elects to proceed upon.
"2nd. The amendment to paragraph 16 wherein plaintiff sets forth that it incurred $8,000.94 in moving and the original paragraph 16 are vague, indefinite and insufficient in that the item of $8,000.94 is not itemized, nor is it alleged or shown how, or what manner plaintiff had to undergo an expense of $8,000.94 in the removal of its machinery, equipment, etc., from the old site to its new site.
"3rd. The allegations in said amendment to the 16th paragraph are vague, indefinite, defective and also wholly irrelevant in that it is not competent, nor legal to plead paragraphs 14 and 15 by way of background and as illustrative of the value of plaintiff's leasehold interest to the end of the tend in the light of the cost of rental of a comparable business site and not as damages for which recovery is sought, and paragraphs 14 and 15 and 16 as amended should be stricken from said petition.
"4th. In addition to the objection to paragraph 15 above set forth in ground 3 of the special demurrer, this defendant says that the following allegation, to wit, the true rental value of the improvements and land and the cost to plaintiff in the light of its own considerable investment in such improvements, over and above that of the Seaview Development Company is in excess of $9000.00 per year, is vague and indefinite, uncertain and defective in that:
"(a) It fails to set forth the exact relation that plaintiff bore to the Seaview Development Company, what financial interest it has in said Seaview Development Company, or whether it owned or controlled said company.
"(b) It fails to set forth what plaintiff's investment was in said Seaview Development Company. The allegation that it had 'considerable investment in such improvements' is too vague and general and indefinite to put this defendant on notice of what actual investment the plaintiff did have in said Seaview Development Company.
"(c) The allegation that the true value of the improvements and land and cost to plaintiff, over and above that of the Seaview Development Company is in excess of $9000.00 fails to set forth how much in excess of $9000.00, and is 50 vague, indefinite that this defendant is not put on notice of sufficient facts in order to base its defense.
"5th. The 22nd paragraph and the allegation therein 'That by reason of its excellent location the site on East Broad Street possessed valuable advertising features, and a large amount of good will was attached to the business at such location is vague, uncertain, indefinite and insufficient in that the exact value or money value of the said location is not set forth. (b) The exact value or money value of the said good will of said business is not set forth. This defendant is entitled to a specific statement from plaintiff as to the said values which are only set forth in general terms.
"6th. The 23rd paragraph of the said petition is vague, indefinite, insufficient and uncertain in that: (a) It fails to set forth the correct value of the plaintiff's leasehold interest. (b) The item of $71,157.49 is not itemized, fur this defendant is entitled to know the alleged elements of damage which compose the said sum of $71,157.49.
"7th. The 25th paragraph of said petition is defective and insufficient and should be stricken for the reason that the plaintiff is not entitled to recover the said sums therein set forth as elements of damage."
On the judgment overruling the demurrers, both general and special, the defendant assigns error.
It might be well here to call attention to the act creating the Housing Authority and certain principles of law relating thereto, particularly as to the exercise of eminent domain. The original act creating the Housing Authority was passed in 1937 (Ga. L. 1937, pp. 210 et seq.), as set forth in Code (Ann. Supp.) 99-1119. Our State law provides in Code 36-101 as follows: "The right of eminent domain is the right of the State, through its regular organization, to reassert, either temporarily or permanently, its dominion over any portion of the soil of the State on account of public exigency and for the public good; thus, in time of war or insurrection the proper authorities may possess and hold any part of the territory of the State for the common safety; and in time of peace the legislature may authorize the appropriation of the same to public purposes, such as the opening of roads, construction of defenses, or providing channels for trade or travel."
Code 36-104 reads: "Except in cases of extreme necessity and great urgency, the right of eminent domain cannot be exercised without first providing for just compensation to the owner for the interference with his exclusive rights."
It will thus be seen that, under the last-quoted section as applied to the pleadings in the instant case, there was no extreme necessity and great urgency for the defendant to exercise the night of eminent domain without first providing for just compensation for the defendant. It might be well to note also that the taking in the instant case was of a permanent and not a temporary nature. The defendant was without authority of law to enter into the estate of the property in question without proper condemnation proceedings, and the plaintiff was not required, under the law, to surrender the possession of its estate without first requiring the defendant to condemn the property under the proceedings provided for condemnation under our law. However, both parties had an agreement by which the defendant took possession of the property and the plaintiff moved out. The parties had a right to make this agreement, but the agreement left the amount of just compensation to be determined thereafter. The parties could not agree on just compensation, and the defendant failed to exercise its right of eminent domain. Thus it was that the plaintiff instituted this action.
1. General demurrer: Regarding the measure of damages for the taking of a leasehold interest in all jurisdictions, so far as we know, the rule is as stated in 29 C. J. S. 988, 143 (13), as follows: "If a leasehold interest is taken or injured, the lessee is entitled to a sum which may restore the money loss consequent to the taking or injury. This consists generally of the fair market value of the leasehold or unexpired term of the lease and is said to be the difference between the rental value of the remainder of the term and the rent reserved in the lease. Stated otherwise, the measure of damages is the difference between the fair market value of the lessee's interest, that is, the value of the annual use of the premises . . . The value of the lease at the time of the taking or injury is not its value to the lessee for a particular purpose, but its fair market value."
The defendant contends that the plaintiff fails to set out a cause of action because the plaintiff is attempting to sue under an implied contract to recover the value of the leasehold agreement. We do not think that this contention is meritorious. When the parties agreed to dispense with the proceedings of eminent domain before receiving just compensation of the value of the leasehold estate, the defendant was thus brought in to the position of an implied contract to pay just compensation under the provisions of the law of our State. The action is not based on the breach of a contract to pay damages, but it is based on the proposition that the defendant took the property of the plaintiff without paying just and adequate compensation therefor, contrary to art. I, sec. III, par. I of the Constitution of Georgia (Code, Ann., 2-301). The suit is for the value of the plaintiff's leasehold, which the defendant failed to condemn. No reason appears why the defendant did not exercise its right of eminent domain, after a failure between the parties to agree on just and adequate compensation. The plaintiff could not initiate such proceedings. This principle is very clearly expressed in 18 Am. Jur. 1023, 380, as follows: "When the statutory remedy, however broad it may be, cannot be initiated by the owner of the land, and the condemner alone can put it into operation and fails to do so, the statutory remedy is not exclusive, and the owner may resort to his action at common law. To construe the statute otherwise, it has been held, would render it unconstitutional."
In 18 Am. Jur. 773, 145, it is said: "From a taking by the Government under the power of eminent domain, there arises an implied promise . . . to compensate the owner for his loss." The plaintiff is entitled to recover the market value of the leasehold interest, less rental payment to the end of the term.
The defendant attacks the petition on another theory--that it is brought for the alleged value of the construction of an entirely new building on another tract of land for the sum of $71,157.49. So far as the general demurrer is concerned, we will not discuss this item in further detail, but will deal with it hereinafter in discussing the special demurrers. As to the general demurrers, the petition is not so vague and indefinite as to make it subject thereto. The court did not err in overruling them.
2. We next consider the special demurrers: first, the demurrers to the petition before amendment. These demurrers to the petition consist of six separate counts. They were overruled, and of necessity we must consider them in the light of the petition as amended. They are directed against paragraphs 14, 15, and 16 as amended and set forth in the above pleadings.
(a) The first ground of these demurrers attacks the petition on the ground that copies of the lease and the transfer thereof are not attached to the petition by exhibit. Code 81-105 does not require such exhibits to be attached. That section requires copies of contracts as exhibits where the petition constitutes the cause of action. That is not the situation in the instant case. In addition to the Code section, see Tompkins v. Gottlieb, 60 Ga. App. 48, 51 (2) (2 S. E. 2d 757).
(b) Grounds 2, 3, and 4 of the special demurrers will be considered together. Ground 2 attacks paragraph 14 of the petition before amendment. Ground 4 deals with that portion of paragraph 16 with reference to items of expense of $8,000.94, covering the removal of equipment, machinery, and inventory to the new site. The allegations of the petition and the demurrers thereto are set forth herein above. In the amendment of paragraph 16, it was alleged substantially that all the items in paragraphs 14, 15, and 16 are pleaded as background illustrative of the fair market value of the plaintiff's leasehold interest, and that such items as are mentioned in these paragraphs were not sought to be recovered as damages per se. Our view is that the items mentioned in paragraphs 14, 15, and 16 are not recoverable as damages per se, but it is our opinion that they may be pleaded as background and illustrative of the recoverable value of the leasehold estate. Of course, if this evidence is admitted, it be comes the duty of the court to explain fully and clearly the purpose for which the testimony is admitted as evidence. The defendant contends that such evidence is not admissible. We disagree with counsel in that regard. We call attention to American Thread Co. v. Rochester, 82 Ga. App. 873 (2) (62 S. E. 2d 6 (12), to sustain our view. See Hobbs v. Holliman, 74 Ga. App. 735 (41 S. E. 2d 332); Rhodes v. Industrial Finance Corp., 64 Ga. App. 549, 551 (13 S. E. 2d 883); Pause v. City of Atlanta, 98 Ga. 92 (26 S. E. 489, 58 Am. St. R. 290). In this connection our attention is called to U. S. v. Katz Drug Co., 150 Fed. 2d 681, 684. That decision recites and relies on the opinion of the United States Supreme Court in U. S. v. General Motors Corporation, 323 U. S. 373 (65 Sup. Ct. 357, 89 L. ed. 311). We will not discuss the two above decisions at length but only briefly. It will be observed that the taking by the Federal Government was temporary and under an emergency. In the instant case, the taking was permanent and under no emergency. It will be observed, however, that in those two cases the court went to great length in admitting evidence illustrative of the compensation which the leaseholder was entitled to receive for the temporary taking of the leasehold estate even to the extent of allowing a bonus to be included as an item to be considered. Our State courts are likewise liberal. Our Constitution does not mention fair market value with inference to condemnation of
property, but uses the words "just and adequate compensation." See also Housing Authority of Augusta v. Holloway, 63 Ga. App. 485 (11 S. E. 2d 418); Elbert County v. Brown, 16 Ga. App. 834 (4) (86 S. E. 651). See also 34 A. L. R. 1523; 3 A. L. R. 2d 315. While it may be true that some of the cases above cited may not be similar in all respects to the issue before the court in the instant case, in our opinion they are analogous and shed much light on the items before us.
We have read carefully the decisions of Miner v. Graham, 60 Ga. App. 189 (1) (3 S. E. 2d 211), and Shiver v. Burkett, 74 Ga. App. 195 (39 S. E. 2d 431), called to our attention by counsel for the defendant. These cases under the facts are not applicable to the situation here. Neither do we think Burnett v. Lunsford, 45 Ga. App. 168 (164 S. E. 100) applicable to the facts of the instant case.
(c) Ground 5 of the special demurrers in reference to paragraph 23 of the petition, in view of what we have already said, is without merit.
(d) Ground 6 of the special demurrers to the original petition is without merit under the facts of this case, in view of what we have held hereinabove.
(e) We come next to consider the special demurrer of November 12, 1953, to the petition as amended regarding paragraphs 14, 15, 16, 22, and 23. The defendant renewed its special demurrers to the original petition before filing the additional special demurrer to the petition as amended. It is contended by the plaintiff that the additional special demurrers came too late, and it cites Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98 (2)
(70 S. E. 2d 734). We do not agree with that contention in view of the amendment filed by the plaintiff. It is our opinion that the amendment materially changed the cause of action, and the defendant was authorized to renew its general and special demurrers to the original petition and to set forth additional special demurrers to the petition as amended.
We have noted this additional demurrer, filed November 12, 1953, which we will now deal with in the proper order. Ground 1 attacks the petition as amended as being duplicitous. This ground is without merit.
Ground 2 attacks the petition because the item of $8,000.94, mentioned in paragraph 16, is not itemized. Since this expense is not alleged to be recoverable as an item of expense per se, but only as illustrative of just and adequate compensation for the taking of private property, it is not required to be itemized.
Ground 3 attacks the petition as to paragraphs 14,15, and 16, in that, as contended, such paragraphs are vague, indefinite, defective, and irrelevant. There is no merit in this ground.
Ground 4: The substance of this ground in the main attacks paragraph 15, which deals with rental costs of the new quarters. The amendment states that the allegations as to the rental costs of the new quarters are pleaded as inducement and illustrative of the amount of just and adequate compensation, and are not required to be pleaded in detail. This ground is without merit.
Ground 5 of the demurrer, referring to paragraph 15 of the petition, calls for more specific allegations with reference to certain items of damage which are not set forth as damages recoverable per se. In such a situation, the law does not require detailed pleadings as to such matters of inducement. There is no merit in this ground.
Ground 6: This ground is a mere restatement of ground 4 of the demurrer to paragraph 23 of the original petition. We think that the correct value of the leasehold interest is a question of fact for the jury to determine. We have already stated that the item of $71,157.49, mentioned in paragraph 23 of the petition, is admissible as an inducement under proper instruction of the court. Since this item is not sought to be recovered as damages per se, the law does not require detailed and itemized statements of the same to be set forth in detail. There is no merit no this ground.
Ground 7 attacks paragraph 25 of the original petition, which seeks to recover from this defendant $250 per month rental after the defendant had entered into possession of the leasehold property. If the plaintiff had not paid this amount, it is possible that it could not, under all the facts and circumstances in the pleadings hereinabove set out, preserve its right. It is undisputed, so far as the pleadings go, that the plaintiff paid the $250 to the defendant at a time while the defendant was in possession of the property under the leasehold estate and the defendant had moved out. We can see no reason why this item of money had and received cannot be recovered in this action. This ground is without merit.
The court did not err in overruling the general and special demurrers to the petition as amended.
Judgment affirmed. Townsend and Carlisle, JJ., concur.