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Action on contract. Before Judge Pharr. Fulton Superior Court. November 23, 1953.
The petition failed to set forth a cause of action for damages for breach of a rental contract, and the trial court did not err in sustaining the general demurrer there to and in dismissing the same.
In the instant case the petition set out that two realty companies, named defendants in the action, had damaged the plaintiff in a named sum by reason of the breach of a rental contract. The contract was alleged to contain a provision that, if the building rented to the plaintiff by the defendants should be condemned by the city in which it was situated, either for the city's use or on account of the structure failing to meet the fire or building regulations of the city, the contract would be void. The petition further set out that the defendants, at the time they rented the building to the petitioner, knew that it had been or would be condemned; that the defendants were experts in determining the adaptability of buildings for specific purposes and in inspecting buildings to ascertain whether they meet the fire and building regulations of the city; that the plaintiff was ignorant of such matters and unable to learn from an inspection of the building rented to him under the contract whether it was adapted to the use for which he rented it or whether it was subject to be condemned because it did not meet the fire or building regulations of the city. The petition continued with allegations that the defendants by "cunning, trickery, scheme, plan and conspiracy," advised and induced the petitioner to rent the property; that he took charge of the building and occupied it for 12 1/2 months, paying rent for 12 1/2 months; that he had paid out large sums in improving the building, relying upon the defendants' representations that it was suited for the purpose for which it was rented and was in a condition to meet the building regulations of the city; that, prior to the time the rent contract was entered into, the building had been condemned; and that he was entitled to recover the amount he had paid for rent and the amount spent in improving the building. The rental contract was attached to and made a part of the petition. The copy of the contract contained a provision that, "In event that the city condemns this property for use of the Atlanta Expressway system or condemns the property for its failure to meet fire or building regulations of the City of Atlanta, this lease will be declared null and void without penalty either to lessee or to lessor."
The copy of the contract also showed that it contained no agreement as to what use the building should be put to, except that it was not to be occupied for any illegal purpose. Paragraphs 3 and 4 of the lease contract are the only ones that refer to the purpose for which the building was leased, and are in the following language: "3. Premises shall be used for -------- purposes and no other. Premises shall not be used for any illegal purposes; nor in violation of any valid regulation of any governmental body, nor in any manner to create any nuisance or trespass; nor in any manner to vitiate the insurance or increase the rate of insurance on premises. 4. Lessee accepts premises in their present condition and as suited for the use intended by lessee. Lessor shall not be required to make any repairs or improvements to premises, except structural repair's necessary for safety and tenantability. Lessor shall keep in good order the roof, exterior walls, abutting sidewalks, and heating, water, sewer, electrical and sprinkler systems, but not fixtures pertaining to such systems. Lessee shall protect said systems against freezing, or damage to systems due to neglect of lessee."
No fraud is shown in the petition because, while it undertakes to allege that the building was not suited for the use intended, it does so only by a vague conclusion which does not reveal why or in what respect the building was not suited for the purposes intended. A petition must allege a cause of action with some degree of certainty in order to withstand a general demurrer. Nance v. Daniel, 183 Ga. 538 (1) (189 S. E. 21).
The petition here utterly fails to set forth a cause of action for the following reasons: While it alleges that the building rented to the plaintiff by the defendants had been condemned prior to the date of the contract, it does not show that the building was condemned for any defect existing in it, or that the order of condemnation was in force on the date of the contract or at any time thereafter. Nothing is added to the strength of the petition by the allegations that the building was subject to condemnation because, so far as the petition reveals, no action was ever taken by the city authorities to condemn it during the period covered by the rental contract. The petition does not allege that there were any latent defects in the building, or that the plaintiff did not have full opportunity to inspect the building and to investigate its condition.
No fraudulent conduct of the defendants that prevented the plaintiff from becoming fully acquainted with the condition of the building and its adaptability to the purpose he intended to use it for is shown in the petition. The allegations that by cunning, scheme, plan, etc., the defendants induced the plaintiff to rent the building are unsupported by any allegation of fact and amount to no more than a conclusion of the pleader, upon which a cause of action cannot be founded.
The petition is fatally defective because it does not show that the plaintiff was deprived of the full possession and enjoyment of the rented premises at any time covered by the rental contract.
If what is said were not enough, the petition strikes itself down with its own lance, by alleging that the plaintiff went into possession of the building and occupied it for 12 1/2 months, without showing that during that time there was any change in the condition of the rented premises or their adaptability for the use for which the plaintiff rented the same.
No strength is added to the petition by the allegations that the defendants knew and that the plaintiff did not know that the building was not suitable for the type of business intended to be carried on therein, for the very simple reason that the copy of the contract made a part of the petition does not contain any stipulation that the building is to be used for any purpose, except that it is not to be used for those that are illegal, and the copy further discloses that the contract is the entire agreement between the parties, and this excludes all agreements and representations not contained therein. Butts v. Groover, 66 Ga. App. 20 (2) (16 S. E. 2d 894); Bridges v. Avery & Sons Co., 86 Ga. App. 9 (70 S. E. 2d 550).
J. J. Fine, F. H. Boney, contra.
J. C. Bowden, A. G. Smith, for plaintiff in error.
Saturday May 23 03:39 EDT

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