Opinion
31395.
DECIDED SEPTEMBER 21, 1946.
Eviction; from Augusta Municipal Court — Judge Powell. June 29, 1946.
Nathan Jolles, for plaintiff in error.
Hull, Barrett, Willingham Towill, contra.
1. Where landlords cause a tenant under a lease executed by a former owner to be notified by the rental agent that they have purchased the property and that they insist upon a compliance with the lease contract, which requires payment of the rent in advance on the first day of each month, and the tenant fails to pay the rent on the first day of the following month and the landlords themselves notify the tenant that they insist upon a strict compliance with the terms of the lease with reference to payment of the rent in advance on the first day of each month, such landlords, on the first day of the month following the notice given by them, have the right to insist upon a compliance by the tenant with the exact terms of the lease contract with reference to payment of the rent in advance, notwithstanding that the original landlord may have accepted payment of the rent at times later than that specified in the lease contract.
2. Whether or not there has been such a mutual disregard of the terms of a written contract as to constitute such departure a quasi new contract is ordinarily a question of fact for the jury.
3. A purchaser of land from a landlord during the term of a tenant has the same right to dispossess the tenant for the failure to pay the rent as required by the terms of the lease that the original landlord had.
4. The verdict is supported by evidence, and the trial judge did not err in overruling the motion for a new trial based only on the general grounds.
5. It not appearing that the writ of error was prosecuted for delay only, the court denies the prayer of the defendants in error for the assessment of damages.
DECIDED SEPTEMBER 21, 1946.
This was a dispossessory-warrant proceeding instituted in the Municipal Court of Augusta by Dorothy H. Murray and Walter B. Murray against M. C. Haynie upon the grounds that the defendant was in possession as their tenant of certain premises and had failed to pay the rent due on May 1, 1946, which was still due and unpaid, and was holding the premises over and beyond his term and had refused their demand to surrender possession of the premises. The defendant filed a counter affidavit, denying that his term of rental had expired or that he was holding over and beyond his term.
On the trial, there was evidence from which the jury was authorized to find that the defendant rented and was in possession of the premises under a ten-year lease, executed by a former owner of the lands, which lease would expire July 1, 1946 and which provided, in part, that the defendant was to pay as rent for the premises the sum of $27.50 per month, payable in advance on the first day of each month, and that in case the defendant should fail to observe the obligations of the lease, the lessor might, at his option, declare the lease terminated and take possession of the property.
The original lessor sold the premises to the plaintiffs on March 7, 1946, and told them that there was a lease on the property. The plaintiffs immediately notified the rental agents that they would insist upon a compliance with the provisions of the lease which required payment of the rent on the first day of each month in advance, and the rental agent so notified the defendant. The rent for April, 1946, was not paid on April 1, and the plaintiffs notified the defendant that they insisted that he comply with the provisions of the lease and pay the rent in advance on the first day of each month.
The rent for May, 1946, was not paid on May 1, and the plaintiffs went to the Office of Price Administration on May 2, and notified the defendant in writing that they demanded possession of the premises because of non-payment of the rent. The defendant received this notice on May 2, and on May 3, he tendered the rent for May to the rental agents, who refused to accept it because of instructions from the plaintiffs. The defendant then tendered the rent to the plaintiffs, who refused to accept it.
There was evidence in behalf of the defendant that he had not been accustomed to paying the rent in advance on the first day of each month, and he introduced in evidence rent receipts showing that the rent for December, 1945, had been paid on January 1, 1946; that the rent for January had been paid on February 5; that the rent for February had been paid on March 5; that the rent for March had been paid on March 18; and that the rent for April had been paid on April 3. The defendant testified that the rent for May, 1946, had not been paid, but that he tendered this rent to the rental agent and to the plaintiffs on May 3, and they refused to accept it.
The jury returned a verdict in favor of the plaintiffs for possession of the premises and for double rent. The exception here is to the judgment of the trial court overruling the defendant's motion for a new trial, which was based only on the general grounds.
It appears that the defendant was in possession of the premises under the terms of a written lease executed by a former owner of the premises, which lease provided that the rent was payable in advance on the first day of each month and that upon failure of the defendant to comply with the obligations of the lease the owner might, at his option, declare the lease terminated and take possession of the premises. It was admitted that the rent for May, 1946, was not paid by the defendant on May 1, and that it was still unpaid at the time of the issuance of the dispossessory warrant. The defendant contended that he had been accustomed to paying his rent subsequently to the time specified in the lease and that his tender on May 3, which was after he had been notified by the plaintiffs that they demanded possession of the premises for non-payment of the rent but before the issuance of the dispossessory warrant, was equivalent to payment of the rent, under the facts of this case.
It appears from the evidence that immediately after the plaintiffs purchased the property on March 7, 1946, they directed the rental agent to notify the defendant that they would insist upon a compliance with the terms of the lease, which required payment of the rent in advance on the first day of each month, and that the rental agent so notified the defendant. It further appears that when the defendant failed to pay the rent for April, on the first day of that month, the plaintiffs notified the defendant that they insisted that he comply with the terms of the lease contract and pay the rent in advance on the first day of each month.
Irrespective of whether or not the acceptance of the rent by the previous owner on dates subsequent to that expressed in the lease contract was such a departure from the contract as would prevent the plaintiffs from relying on the letter of the contract without first notifying the defendant of their intention to do so, the notices given to the defendant by the rental agent and by the plaintiffs, that the plaintiffs had purchased the property from the former owner and would insist upon strict compliance with the provisions of the lease with reference to payment of the rent in advance on the first day of each month, were sufficient to authorize the plaintiffs to require the defendant to comply with the terms of the lease contract with reference to payment of the rent in advance on the first day of each month. Code, § 20-116; Strand Amusement Co. v. Ferrell, 29 Ga. App. 456 ( 115 S.E. 920). Moreover, whether or not there has been such a mutual disregard of the terms of a written contract as to constitute such departure a quasi new contract, is ordinarily a question of fact for the jury. See Mauldin v. Gainey, 15 Ga. App. 353 ( 83 S.E. 276); Craig v. Craig, 53 Ga. App. 632, 635 ( 186 S.E. 755). Under the evidence of this case, including the conduct and statements of the parties, we can not say, as a matter of law, that there was no evidence to support the finding of the jury, that the plaintiffs had the right to require the defendant to comply with the provisions of the lease which provided for payment of the rent in advance on the first day of each month.
It is admitted in the present case that the rent for the month of May was due and unpaid at the time the affidavit was made and the dispossessory warrant was issued and served. The plaintiffs had refused to accept payment of the rent when tendered to them after the time specified for payment in the rent contract. "Tender is, of course, ordinarily equivalent to payment; but this principle can have no application where a condition of the contract is that payment must be made in advance on the first of each month, and where tender is not made in time. A party to a legal contract has the right to insist upon its terms; and in refusing to accept the past-due rent the landlord here was clearly within his rights, and the rent remained unpaid. In these circumstances the tenants were holding over, and the landlord had the right of immediate re-entry and dispossession." Cunningham v. Moore, 60 Ga. App. 850, 853 ( 5 S.E.2d 71). Also, see Bowling v. Hathcock, 27 Ga. App. 67 ( 102 S.E. 384); Huff v. Markham, 70 Ga. 284 (2); Clifford v. Gressinger, 96 Ga. 789 ( 22 S.E. 399); Hicks v. Beacham, 131 Ga. 89 ( 62 S.E. 45); Carter v. Sutton, 147 Ga. 496 ( 94 S.E. 760); Code, §§ 61-301 et seq. The plaintiffs, as successors in title from the original landlord during the term of the tenant, had the same right to dispossess the tenant for non-payment of rent when due that the original landlord had. Willis v. Harrell, 118 Ga. 906 (6) ( 45 S.E. 794); Veal v. Jenkins, 58 Ga. App. 4 (2) ( 197 S.E. 328).
The cases cited and relied on by the plaintiff in error are clearly distinguishable on their facts from the present case and the rulings made in those cases do not authorize or require a different ruling in this case from the one herein made. The rulings made in Hicks v. Beacham, supra, and Mahoney v. McKenzie, 27 Ga. App. 245 ( 107 S.E. 775), in so far as applicable to the issues involved in this case, are fully discussed and explained in Cunningham v. Moore, supra.
The verdict is supported by evidence and has the approval of the trial judge; and the judge did not err in overruling the motion for a new trial based only on the general grounds.
It not appearing that the writ of error was prosecuted for the purpose of delay only, the court denies the prayer of the defendants for the assessment of damages. Code, § 6-1801; City Council of Augusta v. King, 54 Ga. App. 111 (3) ( 187 S.E. 268).
Judgment affirmed. Felton and Parker, JJ., concur.