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Dispossessory warrant; from Butts Superior Court-- Judge Willingham. April 15, 1952.
1. (a) Where a landlord treats a lease as assigned, even though the original lessee had no right to assign it without his consent, and instructs the purchasers of the lessee's business, who continue to conduct the same business upon the landlord's premises, to take over the lease, both parties fulfilling the obligations thereof until the date of its termination, the landlord is estopped to assert that the assignment of the lease contract was without his consent. Accordingly, the tenants have a right to insist upon all the covenants and conditions therein, including an option for the renewal of the lease.
(b) In the absence of a contrary agreement an option of renewal of a lease which fails to specify either the duration of the new term or the amount of the rent will be construed to mean a renewal for the same period of time at the same rent as set forth in the original lease.
(2, 3.) The charges of the court complained of in special grounds 2 and 3 are without error.
4. Jurors, after the rendition of a verdict, may not impeach the same or change its plain intendment by statements as to what they intended it to mean.
The plaintiff in error, Ray Saunders, who is referred to herein as the landlord, issued a dispossessory warrant in the Superior Court of Butts County against the defendants in error, Sasser and McCarty, herein referred to as the tenants, on the statutory grounds that they are holding over beyond their term, and have failed to pay the rent now due. The tenants filed a counter-affidavit, setting up that they were holding under and by virtue of a lease dated January 8, 1946, for a five year period from January 17, 1946, to January 17, 1951, the essential provisions of which are as follows: "The said party of the second part [the lessee Paul Tyler] has this day rented and leased from the said party of the first part [the lessor Saunders] a certain building . . . for a term of five years commencing on the 17th day of January, 1946, and ending on the 17th day of January, 1951, and the said party of the second part, to have the privilege of renewal at the end of said period by giving 30 days notice of his intention to exercise this privilege to the said party of the first part, for which the party of the second part, agrees to pay said party of the first, part the sum of $35 per month; and on his failure to pay the same when due said G. Ray Saunders has the right, and option to declare this lease void, cancel the same and take possession of the premises." The lease further provided that the lessor should make necessary repairs at his own expense, and that, in the event of destruction by fire, the rent shall cease. The counter-affidavit also set, out that on January 28, 1946, the defendants purchased the grocery business they now operate at this location from Paul Tyler, the original lessee; that at that time the defendants inquired of the landlord whether he wished to make a new lease with them on said building, and were advised by the said Saunders that he did not want a new lease but that they should just go ahead and take over the Tyler lease. Upon the trial of the case the testimony of the tenants was to the same effect; that is, that they did "take over the Tyler lease," both by operating thereunder from January 28, 1946, to January 17, 1951, and by obtaining a written assignment thereof from Tyler dated November 16, 1950, as follows: "For value received, I hereby transfer and assign the within lease with all of its rights and privileges to Sasser and McCarty." Tyler had previously given the lease itself to the tenants at the time he sold them the grocery business. On December 11, 1950, the tenants' notified the landlord by letter that they were declaring their intention as transferees under the lease to Tyler to lease the building for another five-year term. On January 17, 1951, the landlord notified the tenants by mail that beginning that day the rent for the building would be $100 per month. This letter was disregarded. On February 20 he gave them written notice to vacate the premises, "inasmuch as you are holding the following described premises . . . over and beyond the term for which same was rented or leased to you or Paul Tyler and later transferred to you." The tenants agreed to pay an increased rental of $50 per month, which they testified would be a fair rent, but refused to pay more than that, and on March 14, 1951, the dispossessory warrant was sworn out.
The trial resulted in a verdict for the defendants. The plaintiff filed a motion for a new trial on the general grounds which was later amended by the addition of five special grounds, and the overruling of this motion is assigned as error.
(After stating the foregoing facts.) 1. The decision in this case must depend upon whether the defendants were tenants at will, as contended by the landlord, or whether they were tenants as assignees of the lease to Paul Tyler. If the latter, the option to renew the lease passed to them as a valuable right under the lease contract which they might exercise in their own right. Hamby & Toomer v. Georgia Iron & Coal Co., 127 Ga. 792 (1b) (56 S. E. 1033). Without entering into the question of whether the lease intended to pass a mere usufruct or an estate for years, it will be noticed that both parties fulfilled all of the obligations of the lease up to its expiration data The landlord paid taxes and repaired the property; he took the rent of $35 stipulated in the lease on the 17th day of each month, which was the first day of each rental month, and this in spite of the fact that he testified that the property had a fair rental value of $100 per month from 1947 to the present. The jury was authorized to find that he asked for no increase in rent until the expiration date of the lease, January 17, 1951. The landlord did not look to Tyler for his rent after Tyler sold his business to the defendants, nor did he cancel the lease, but on the contrary, knowing that Tyler had sold out and turned the lease over to the defendants, he instructed them to take over the Tyler lease and thereafter dealt exclusively with them in accordance with its terms. Further, when he gave them the notice to vacate in February, 1951, he referred to them, in the alternative, as transferees of Tyler's lease. Where a landlord treats a lease as assigned, even though the original lessee had no right to assign it without his consent, he is estopped from setting up that the assignment of his contract is made without his consent. Hamby & Toomer v. Georgia Iron & Coal Co., supra; Lawson v. Haygood, 202 Ga. 501 (2) (43 S. E. 2d, 649). The assignment here was originally oral, made simply by turning the lease over to the defendants, and it was subsequently put in writing shortly before the end of the original term. Such a written assignment during the term of the lease is presumptively valid, although subsequent to actual possession by the assignee, but, even if it were not, the lessor cannot complain that the lease was not properly transferred in writing and so violated the statute of frauds, as this is a matter solely between the lessee and his transferee. Gilbert Hotel No. 22 v. Black, 67 Ga. App. 221, 228 (19 S. E. 2d, 796). The first special ground of the amended motion for a new trial attacking the transfer and contract as being within the statute of frauds is without merit, and the evidence was sufficient to authorize a finding that the landlord acquiesced in the tenancy of these defendants under the tends of the lease. It follows therefore that he is bound by its covenants, including the option of renewal.
(b) The general rule is that where a lease for a stated period at a stated price contains an option of renewal which fails to specify either the duration of the new term or the amount of rent, the intendment is that the renewal applies to a new term of the same duration for the same rent, and the fact that the rental value has increased in the meantime is immaterial. Penilla v. Gerstenkorn, 86 Cal. App. 668 (261 Pac. 488). See also Taylor, Landlord and Tenant, 332; 16 R. C. L. 887; 51 c. j. s., Landlord and Tenant, 71; Maas Bros. v. Weitzman, 288 Mich. 625 (286 N. W. 104). The tenants having exercised their option to renew the lease by proper and timely notice, they are entitled to the occupancy of the premises for the additional five-year term.
2. The charge complained of in special ground two to the effect that, where there is uncertainty in the provisions of an agreement, the tenant should be favored rather than the landlord, is without error, for the reasons stated in Felder v. Oldham, 199 Ga. 820, 826 (35 S. E. 2d, 498) that the landlord, having power to stipulate in his own favor, neglected to do so, and because every man's grant is to be taken most strongly against him. Nor was the charge misleading or confusing to the jury as not specifically pointing out what "agreement" the court meant, since it obviously referred to the lease contract.
3. The court further charged the jury in substance that, if they should believe the written lease was operative between the parties, the burden of proof would then be on the plaintiff, in order to defeat the defendants' claim, to prove that subsequently thereto another agreement was entered into between the parties containing different stipulations from those found in the original lease. This charge was not contradictory or confusing as alleged, and the further objection on the ground that such a contract would violate the statute of frauds, is also without merit.
4. The jury, in returning a verdict in favor of the defendants, added the following recommendation which was disregarded as surplusage by the court: "We the jury recommend that Sasser and McCarty pay $75 per month or fair rent to the plaintiff beginning 18th day of January, 1951." Special grounds 4 and 5 complain that the jury was confused and misled, as shown by the form of the verdict, and there is attached as an exhibit to the fifth ground a statement signed by the jurymen that they had intended to find in favor of the plaintiff, Ray Saunders, but wanted to permit the defendants to stay on at an increased rent. Unfortunately, whether or not the rent stipulated in the lease was a fair or reasonable rental is not an issue in the case, and the members of the jury may not by a subsequent statement show what they intended by their verdict in order to impeach the same. Stafford v. State, 55 Ga. 592 (2); Clower v. Wynn, 59 Ga. 246. These grounds are without merit.
The trial court did not err in overruling the motion for a new trial as amended.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
Cumming & Cumming, Joseph R. Cumming, W. M. Redman, contra.
W. E. Watkins, Benjamin B. Garland, for plaintiff in error.
DECIDED JULY 14, 1952.
Saturday May 23 04:59 EDT

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