Summary
In Hughes Motor Co., the plaintiff sought, after the defendant's default on a 5-year lease agreement for a telephonic communication system with rental payments originally totalling $23,985, the balance of $14,910.75.
Summary of this case from Taylor v. Commercial Credit Equipment Corp.Opinion
51114.
ARGUED SEPTEMBER 10, 1975.
DECIDED OCTOBER 23, 1975.
Action on lease. Muscogee Superior Court. Before Judge Davis.
Martin, Kilpatrick Davidson, Marcus B. Calhoun, Jr., for appellant.
Armour Cielinski, Michael Cielinski, for appellee.
First National Bank of Atlanta, the plaintiff in this action, sued Hughes Motor Company upon the default of the latter's payment of rent on a five-year lease of a telephonic communication system. The lease, among other stipulations, provided for acceleration of the total rent debt upon default and also for repossession of the leased equipment. Plaintiff was granted summary judgment in the amount stipulated as remaining rental for the lease period, and the defendant appeals.
ARGUED SEPTEMBER 10, 1975 — DECIDED OCTOBER 23, 1975.
1. Code § 6-802 requires "a concise statement of the judgment, ruling or order entitling the appellant to take an appeal." This notice recites that it is from the order granting plaintiff's motion for summary judgment entered on May 15, 1975. The order, which is in the record, was signed on May 15 but entered on May 20. In view of Code § 6-809 this does not render the appeal subject to dismissal. Beaubien v. Bogle, 126 Ga. App. 406 (1) ( 190 S.E.2d 830); Brackett v. Allison, 119 Ga. App. 632 ( 168 S.E.2d 611).
2. Paragraph 14 of the lease stipulates that upon default, the lessor may terminate the lease, take possession of the equipment for its own purposes, and may "with or without legal process and employing all such force as may be necessary" enter and seize it from any premises on which it is located. The appellant contends that such provisions are unconstitutional and under the lease void. However, the present action seeks a money judgment only under the acceleration provisions of the lease. The illegality of an option not in fact used does not render the entire contract void unless a statute makes it so. For example, there can be no recovery under the Industrial Loan Act for a usurious loan because Code § 25-9903 specifically provides that loan contracts in violation thereof shall be null and void. Hodges v. Community Loan c. Corp., 234 Ga. 427 ( 216 S.E.2d 274). The questionable enforceability of this provision is immaterial in view of the posture of the case, since no seizure was effected.
3. Appellant's second enumeration of error alleges that the acceleration provisions of the lease are unenforceable against him. We feel bound by the decision in Military Armament Corp. v. ITT Terryphone Corp., 134 Ga. App. 694 ( 215 S.E.2d 724) which holds that when authorized by the contract such acceleration of the entire rental price represents liquidated damages and does not constitute a penalty as provided in Code § 30-1403.
4. The acceleration provisions of the contract being enforceable against the appellant as liquidated damages authorized under the contract and there being no genuine issue of material fact, the trial court's order granting summary judgment to appellee must be affirmed.
Judgment affirmed. Evans and Stolz, JJ., concur.