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SACHS et al. v. JONES.
Dispossessory warrant; from Fulton Civil Court--Appellate Division. May 29, 1950. (Application to Supreme Court for certiorari.)
1. The trial court erred in construing the lease contract in this case as depriving the landlords of the right to pursue statutory remedies to regain possession of the premises upon default of the tenant in paying the rent.
2. There was evidence tending to show notice by the landlords to the tenant, upon the execution of the new lease, of the landlords' intention to insist on strict adherence to the terms of the lease with regard to the time of the payment of the rent. The defendant testified that he did not recall receiving such notice. Consequently, where the stipulations of facts of the parties showed that the tenant had failed to pay the rent on the premises promptly in advance on the first day of the second month, the day it was due under the explicit terms of the written lease, the evidence, if it did not demand a finding for the plaintiffs, presented a jury question as to whether, under the custom of the landlords to accept the rent when paid one, two or three days late under the prior lease, there was a waiver by the landlords of the right to insist on a strict adherence to the express written terms of the new lease contract.
L. Sachs and J. C. Overstreet swore out a dispossessory warrant against Albert B. Jones, alleging that the defendant tenant failed to pay the rent due on certain premises, a building known as 1600 Piedmont Road, N. E., Atlanta, Georgia; that possession of the premises had been demanded by the affiants and refused by the tenant. By counter-affidavit the tenant arrested the proceedings and denied that he had failed to pay the rent when due, and alleged that the landlords were not proceeding in good faith. Upon the trial of the case the judge directed a verdict for the defendant. The plaintiffs made a motion for a new trial on the general grounds and on the ground that "the court erred in directing a verdict for the defendant, for the reason a verdict for the plaintiffs was demanded and required under the law and the uncontradicted evidence." The trial court overruled the motion and the plaintiffs appealed to the Appellate Division of the Civil Court of Fulton County, which affirmed the trial judge, and the exception here is to that ruling.
The plaintiff introduced in evidence a lease dated December 31, 1949, for a term of five years terminating on December 31, 1954, at midnight. This was the lease under which the premises were rented. The pertinent provisions of the lease were: "2. Lessee shall pay to Lessor, promptly on the first day of each month in advance, during the term of this lease, a monthly rental of One Hundred Seventy-Five ($175.00) Dollars, said rental to be paid to the Lessors at No. 1586 Boulevard, N. E., Atlanta, Georgia, which is the residence of J. C. Overstreet."
"8. If Lessee defaults for three days after written notice thereof in paying said rent--Lessor at his option may at once, or within six months thereafter (but only during continuance of such default or condition) terminate this lease by written notice to Lessee; whereupon this lease shall end--Upon such termination by Lessor, Lessee will at once surrender possession of the premises to Lessor and remove all Lessee's effects therefrom; and Lessor may forthwith re-enter the premises and repossess themselves thereof, and remove all persons and effects therefrom, using such force as may be necessary without being guilty of trespass, forcible entry or detainer or other tort."
"16. . . . No failure of Lessor to exercise any power given Lessor hereunder, or to insist upon strict compliance by Lessee of any obligation hereunder, and no custom or practice of the parties at variance with the terms hereof shall constitute a waiver of Lessor's right to demand exact compliance with the terms hereof."
"17. Time is of the essence of this agreement."
"21. All rights, powers and privileges conferred hereunder upon the parties hereto shall be cumulative but not restrictive of those given by law."
It was stipulated by counsel for the parties: that under this contract of rental the tenant paid the first month's rental to J. C. Overstreet at the time the lease was signed; that the second month's rental was due February 1, 1950; that it was not paid or tendered until the defendant sent it to Overstreet on February 3, but was not actually received by Overstreet until February 5; that on that day Overstreet returned it to the defendant; that subsequently thereto, and prior to the issuance of the dispossessory warrant, the plaintiffs demanded possession of the premises from the defendant, but he refused to deliver possession; that the plaintiffs did not give the defendant written notice with respect to the rental due on February 1, as provided by paragraph 8 of the lease quoted above; and that during the prior lease between the parties, the defendant had not paid the rental promptly on the first day of each and every month as stipulated in the lease then in existence, but that he sometimes paid the rent one, two or three days late.
The plaintiffs' attorney testified as a witness: that when the prior lease between the parties expired on December 31, 1949, he prepared this renewal lease for an additional five-year term in accordance with an option to renew embodied in the old lease; that he had the defendant sign the lease on the 31st and pay the rent to Overstreet on that day and he told the defendant that the plaintiffs had asked him (the witness) to tell him that they were going to demand or insist upon payment of the rent promptly on the first day of each month.
The defendant testified in his own behalf to substantially the same facts as testified to by the plaintiffs' witness and as stipulated, but stated that he did not recall the plaintiff's' attorney telling him that the plaintiffs were going to insist on prompt payment of the rent.
(After stating the foregoing facts.) the trial court seems to have directed the verdict on the theory that the lease involved in this case is but a continuation of the old rent contract, and that the plaintiffs by their long course of dealing with the defendant and in accepting the rent regularly one, two or three days late, were estopped to insist on prompt payment of the rent, and further on the theory that the provision of paragraph 8 of the lease contract regarding three days' written notice provided the only means whereby the landlords could terminate the lease or repossess the premises for a default or breach of the lease provisions by the defendant, and that the evidence and stipulations show that the plaintiffs did not follow this provision, and that therefore the defendant did not have proper notice before being dispossessed.
While lease contracts, like other contracts, where the construction is doubtful, must be construed against the party drawing and executing them (Code, 20-704 (5)), nevertheless, a contract should not be torn apart and construed in pieces, but the court should look to the entire instrument and so construe it as to reconcile its different parts and reject a construction which leads to contradiction, in order to ascertain the true intention of the parties, which is the real purpose of the judicial construction of contracts. Code, 20-702 and 20-704 (4); Skinner v. Bearden, 77 Ga. App. 325 (48 S. E. 2d, 574). Construing the contract in question, then, what seems to have been the real intention of the parties? Viewed in its proper light, let us say at the outset, that there is no real inconsistency or irreconcilability in the different parts of the contract here involved. However, we think the ruling of the trial court makes it apparent that the court either construed the contract with the view that paragraph 21 was contradictory to the provisions of paragraph 8, and controlled by that paragraph, or overlooked the provisions of paragraph 21 entirely. This paragraph provided that all the rights and privileges conferred under the contract to the parties were cumulative but not restrictive of those given by law. Under this clause, the provision of paragraph 8, calling for a procedure whereby the landlords might re-enter without legal process after three days had elapsed from a written notice by the landlords of the tenant's default in the payment of the rent, was in addition to any remedies provided for by law, and the landlords were perfectly at liberty to proceed according to law to dispossess the tenant unless they were barred for some other reason.
It is conceded by the landlords that prior to the execution of this lease, and during a part of the continuance of the first lease, they permitted and acquiesced in the tenant's habit of paying the rent one, two or three days late. Conceding that such a custom constituted a waiver by the landlords, in the absence of anything to the contrary appearing, of their right to insist upon the prompt payment of the rent on the first of each month, under the old lease, or a mutual voluntary disregard by the parties of its terms (Code, 20-116) the tenant was entitled to receive reasonable notice of the landlords' intention to insist on strict adherence to the terms of the written contract. Whether the tenant received such reasonable notice under the circumstances was a jury question. the plaintiffs' attorney testified that he informed the defendant of the plaintiffs' intention to insist upon the payment of the rent promptly upon the first day of the month. The defendant testified that he "did not recall" the plaintiffs' counsel making such statement. If plaintiffs' counsel did, it was enough to charge the defendant with notice of the landlords' intention to assert their rights strictly according to the written contract, and he cannot defend on the ground of the prior custom. This question should have been submitted to the jury.
The plaintiffs being entitled to pursue statutory remedies in dispossessing the tenant, they had the right to refuse to accept the tender of the rent if it was not made in time and in accordance with the terms of the lease, or with the terms acquiesced in by the plaintiffs by custom. The plaintiffs alleged, and the stipulations showed, a demand for possession by the landlords and a refusal to deliver possession by the tenant. The only question raised was whether under the terms of the contract and the action of the parties the rent was in fact due and unpaid or properly refused by the landlords when tendered late, or whether such tender was in fact in time. Under the facts appearing this was at least a jury question, and the trial court erred in directing the verdict for the defendant, and in overruling the plaintiffs' motion for a new trial complaining of that ruling, and the Appellate Division erred in thereafter affirming that order of the trial judge.
Judgment reversed. Sutton, C. J., concurs. Felton, J., concurs in the judgment.
E. H. Stanford, for defendant.
Grant, Wiggins, Grizzard & Smith, for plaintiffs.
Saturday May 23 05:35 EDT

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