Both counts of the petition set forth a cause of action. The trial judge did not err in overruling the defendant's general demurrer.
S. & W. Cafeteria of Atlanta, Inc., instituted a suit against Trust Company of Georgia, as executor and trustee under the will of J. Bulow Campbell, in the Superior Court of Fulton County.
The petition alleged: That the plaintiff is a corporation organized and existing under the laws of Georgia; Trust Company of Georgia is a banking corporation organized under the laws of Georgia, with authority to act and serve as executor and trustee, maintains its principal office in Fulton County and is subject to the jurisdiction of this court; Trust Company of Georgia is the duly appointed executor of and trustee under the will of J. Bulow Campbell, who died a resident of Fulton County, Georgia; as executor of and trustee under the will of J. Bulow Campbell, deceased, Trust Company of Georgia is the owner of certain improved real estate in the City of Atlanta, Fulton County, Georgia, situated on the east side of Peachtree Street, between Ellis and Cain Streets, which is rented to the plaintiff as hereinafter alleged; on August 18, 1942, the defendant entered into a written lease agreement with the plaintiff by the terms of which it rented to the plaintiff the aforesaid real property "for a term beginning at midnight on March 31, 1943, and ending on the first day of February, 1979"; each of the parties has an original signed copy of the agreement, which contains a description of the aforesaid real estate, and which is incorporated herein and made a part hereof by reference, the same as if physically attached hereto; profert is made; the plaintiff has been in possession of the aforesaid premises under the lease agreement since the effective date thereof, has paid to the defendant the rental specified, and has otherwise complied with the requirements of the agreement; by the terms of the lease agreement, it is provided that the defendant, as landlord, shall pay all taxes and assessments which may be assessed against the leased premises; the provision in this respect is in paragraph 12, which reads as follows: "during the period of this lease the landlord agrees to pay all taxes and/or assessments which may at any time be assessed against said premises, including said building or buildings, and additions thereto located on said leased premises, but not including the furniture, trade fixtures and stock of merchandise and other property of the tenant located "; pursuant to the aforesaid terms of the lease agreement, the defendant has paid all ad valorem tax assessments and levies against the leased premises of the City of Atlanta, of Fulton County and of the State of Georgia, from the date of said lease through the year 1955; for and during the year 1956, a joint city-county board of tax assessors was authorized by law to appraise, value, and assess all real property within the City of Atlanta and Fulton County for city, county and State ad valorem taxes for the year 1956; pursuant to a plan of reappraisal, revaluation and reassessment of all real property in the City of Atlanta and Fulton County for 1956, county and State ad valorem tax purposes, the said joint board revalued and reassessed all real property in the city and county, resulting in an increase in the assessable value of
most of the real property within the city and county; in the aforesaid revaluation and reassessment program, the real property covered by the lease agreement was revalued and reassessed for 1956 city, county and State ad valorem taxes, resulting in an assessable valuation in excess of that upon which such taxes were based in previous years; being dissatisfied with the increased assessable valuation as aforesaid, the defendant negotiated with the said board in an effort to effect a reduction of such valuation and did succeed in such effort, but not to the extent of reducing the assessable valuation below that of previous years; in an attempt to avoid its obligation under the lease agreement to pay all city, county and State ad valorem taxes on the leased premises for the year 1956, and to improperly pass a portion thereof onto the plaintiff, the defendant entreated the said taxing authority, by representing that the plaintiff had a leasehold estate, and the defendant only a reversionary estate, in the rented premises, to break down the assessable valuation of the rented premises and the resulting assessments and taxes thereon between the parties, and to attribute only a portion of such value, assessment and tax to the defendant's reversionary estate and the remaining portion to the plaintiff's leasehold estate; following the aforesaid revaluation, and in reliance upon the said representation and entreaty of the defendant, the said joint board of the City of Atlanta and Fulton County, in assessing the leased premises, undertook to and did break the fee down into leasehold and reversionary estates; did divide the aforesaid assessable valuation of the premises between such estates and assess each, the former to the plaintiff and the latter to the defendant, on the basis of such division, for 1956 ad valorem taxes of the city, county and State; the taxes for 1956 resulting as aforesaid, upon the leasehold and reversionary estates were taxes properly assessable and assessed against the leased premises as contemplated by the lease agreement and were, taken together, the proper city, county and State ad valorem taxes resulting from application of the lawful tax rates to the assessable valuation of the leased premises; the plaintiff demanded in writing of the defendant, following notice to it of the aforesaid revaluation and assessments, that it pay and discharge such assessments and taxes in accordance with the terms of the lease agreement; the defendant refused, in response to the plaintiff's said demand, to assume or pay the taxes assessed and imposed as aforesaid on the leased premises; by the terms of paragraph 22 of the said lease agreement, the plaintiff is given the right to pay any taxes "affecting the demised premises for which it (defendant) is responsible," if the same is not paid when due or within ten days after notice in writing thereof is given to the defendant, and the defendant agrees to reimburse the plaintiff "forthwith the amount so paid"; pursuant to the aforesaid authorization in the lease contained and to protect its lease agreement and its rights thereunder, the plaintiff did, on September 26, 1956, after more than ten days following the aforesaid notice in writing to the defendant, pay the said taxes assessed upon the leasehold estate in the amount of $5,312.54 to the City of Atlanta and in the amount of $3,031.99 to Fulton County; the taxes paid by the plaintiff as aforesaid, together with those assessed against the reversionary estate of the defendant, comprise together the lawful city, county and State ad valorem taxes assessed at the established and lawful rates upon the aforesaid reappraised and reassessed value of the leased premises, and are, together, the city, county and State ad valorem taxes for the year 1956 upon the leased premises; following its payment of the aforesaid city, county, and State taxes, the plaintiff made demand of the defendant that it reimburse the plaintiff therefor, which demand it refused and continues to ignore; payments by the plaintiff of the taxes as aforesaid were payments for the use and benefit of the defendant; were made for the protection of the plaintiff's rights under the lease agreement, and it would be against equity and good conscience for the defendant to retain the benefit resulting from the reduction of its tax liability as herein alleged.
Count 2. Paragraphs 1 through 6 of count 1 of the petition are incorporated herein the same as if set forth verbatim; by the terms of the said lease agreement, it is specifically provided that no leasehold or other estate shall be created in the plaintiff, paragraph 28 of the agreement reading as follows: "This lease shall create the relationship of landlord and tenant between the landlord and tenant; no estate shall pass out of landlord; tenant has only a usufruct not subject to levy and sale"; paragraphs 7 through 12 of count 1 of the petition are incorporated herein, the same as if set forth verbatim; with full knowledge that the plaintiff had only a usufruct in the leased premises, in an attempt to avoid its obligation under the lease agreement to pay all city, county and State ad valorem taxes on the leased premises for the year 1956, and to improperly pass a portion thereof onto the plaintiff, the defendant entreated the said taxing authority, by representing that the plaintiff had a leasehold estate, and the defendant only a reversionary estate, in the rented premises, to break down the assessable valuation of the rented premises and the resulting assessments and taxes thereon between the parties, and to attribute only a portion of such value, assessment and tax to the defendant's reversionary estate and the remaining portion to the plaintiff's leasehold estate; paragraphs 14 through 16 of count 1 of the petition are incorporated herein, the same as if set forth verbatim; the defendant refused, in response to the plaintiff's said demand, to assume or pay the taxes assessed and imposed as aforesaid upon the leased premises, setting forth in its refusal and as its basis therefor, a written opinion under date of September 17, 1956, from its attorney; copy of said attorney's opinion is hereto attached and made a part hereof as Exhibit A; in refusing the plaintiff's demand as aforesaid, neither the defendant nor its attorney disclosed the circumstances under which the purported leasehold estate was valued and assessed as herein alleged, but instead undertook to lead the plaintiff into the belief that the said assessments and resulting taxes were made and imposed without the defendant's intervention and entreaties as aforesaid and that the taxes upon the purported leasehold were proper, lawful, and impositions which the plaintiff should pay; the defendant intended, in transmitting to the plaintiff the opinion of its attorney as aforesaid, that the plaintiff rely thereon and pay the taxes imposed upon the purported leasehold estate; in reliance upon the defendant's aforesaid representations in its refusal to accede to the plaintiff's demand and in ignorance of the facts and circumstances as hereinafter alleged, the plaintiff did, on September 26, 1956, more than ten days after its said demand of the defendant, pay and discharge the aforesaid purported leasehold estate taxes, in the amount of $5,312.54 to the City of Atlanta, upon which fi. fa. has issued and immediate levy and sale were threatened, and $4,031.99 to the County of Fulton; the
taxes paid by the plaintiff as aforesaid, together with those assessed against the purported reversionary estate of the defendant, comprise together the lawful city and county taxes assessed at the established and lawful rates upon the appraised and assessable value of the leased premises, and are, together, the city, county and State ad valorem taxes for the year 1956 upon the leased premises; following its payment of the aforesaid city, county and State taxes, and the report from its attorneys as herein alleged, the plaintiff made demand of the defendant that it reimburse the plaintiff for and in the amount of such taxes, which demand it refused and continues to ignore; payment by the plaintiff of the said taxes was made in ignorance of the fact that the taxes assessed against the supposed leasehold estate of the plaintiff amounted to a mere reduction in the taxes assessed and imposed upon the defendant in the manner hereinabove alleged, in ignorance of the fact that the purported leasehold estate taxes were merely a part of the taxes upon the leased premises or the fee as alleged, and that such imposition upon the plaintiff, in the manner aforesaid, was brought about by the defendant; payment by the plaintiff of the said taxes was made in ignorance of the fact that the valuation of the supposed leasehold estate and the assessments and taxes based thereon merely reflected reductions in like amounts in the valuation of the leased premises and the assessments and taxes based thereon and that the defendant's interest in the leased premises, and at the value of the leased premises less the value apportioned to the supposed leasehold estate of the plaintiff, and that the taxes assessed against such reversionary estate were in an amount equivalent to the taxes upon the leased premises less the taxes assessed against the supposed leasehold estate of the plaintiff, and that such division assessment and imposition of taxes was brought about by the defendant as aforesaid; payment by the plaintiff of the said taxes was made in mistake of law, in that the plaintiff, by reason of and in reliance upon the aforesaid opinion of the defendant's attorney believed the law of Georgia to permit the imposition of city, State and county ad valorem taxes upon a mere usufruct, that such taxes were in addition to, rather than in reduction of, city county, and State ad valorem taxes upon the fee, and that they were taxes which the plaintiff, as between itself and the taxing authorities involved, would be required to pay; following its payment of the taxes as aforesaid, the plaintiff employed attorneys in Atlanta to study the said lease agreement to determine, if by its terms, the defendant would be required to reimburse the plaintiff for the taxes which it paid; the attorneys employed by the plaintiff informed it that the lease agreement created or conveyed no leasehold estate to the plaintiff but only a usufruct; that a mere usufruct was not subject to city, county and State ad valorem taxes; that a mere usufruct had never been assessed for such taxes; that investigation of the tax records and inquiry of the assessing body indicated that such taxes as were imposed upon the plaintiff for the year 1956 were a result of the aforesaid acts and representations of the defendant and the resultant impression of the taxing authorities that the plaintiff and the defendant had leasehold and reversionary estates in the leased premises; payment by the plaintiff of the taxes as aforesaid were payments for the use and benefit of the defendant; were made in ignorance of the facts, as hereinabove alleged; were made for the protection of the plaintiff's rights under the lease agreement, and it would be against equity and good conscience for the defendant to retain the benefit resulting from the reduction of its tax liability as herein alleged.
The prayers of both counts were for the recovery of the sum paid by the plaintiff to satisfy the tax assessments referred to in the petition.
The parts of the same, material to a consideration of the sufficiency of the petition read: "This lease made in quintuplicate this the 18th day of August, 1942, and between: Trust Company of Georgia, as executor of and trustee under the will of J. Bulow Campbell, deceased, acting under and by virtue of the power contained in the will of J. Bulow Campbell, which will has been probated in solemn form in Court of Ordinary, Fulton County, Georgia, hereinafter referred to as 'Landlord' and S. & W. Cafeteria of Atlanta, Inc., a corporation organized and existing under the laws of the State of Georgia, hereinafter referred to as 'Tenant', Witnesseth: The landlord, for and in consideration of the rents, covenants, agreements and stipulations hereinafter mentioned, reserved and contained to be paid, kept and performed by the tenant, has leased and rented, and by these presents does lease and rent unto the said tenant, and the tenant hereby agrees to lease and take upon the terms and conditions which hereinafter appear, the following property to wit: All that tract or parcel of land, with the improvements thereon, consisting of two-story and basement brick and concrete building, situate and lying in the City of Atlanta, being in Land Lot No. 51 of the 14th District of originally Henry, now Fulton County, Georgia, being part of Lot No. 14 of Block No 4, and more particularly described as follows: (following which was a definite description of the leased premises.)
"To have and to hold the entire premises for a term beginning at midnight on March 31, 1943, and ending on the first day of February 1979, at 8 in the forenoon, unless sooner terminated as hereinafter provided; The tenant agrees to pay rent as follows: For the first ten-year period $58,000 per annum, gross rental; for the second ten-year period $62,000 per annum, gross rental; for the third period of fifteen years and ten months, $65,000 per annum, gross rental; the rent for each period shall be payable in equal monthly instalments and the rent for each month shall be payable on or before the 15th day of that month; for certain purposes hereinafter stated, three-fourths of the above rental is allocated to Tract A and one-fourth to Tract B.
"During the period of this lease the landlord agrees to pay all taxes and/or assessments which may at any time be assessed against said premises, including said building or buildings, and additions thereto located on said leased premises, but not including the furniture, trade fixtures and stock of merchandise and other property of the tenant located therein.
"The landlord agrees that tenant shall have the right, from time to time, during the term of this lease, to make such alterations, additions and changes, structural or otherwise, in and to the building on leased premises as it finds desirable or convenient for its purposes, and may build on any vacant land included within the leased premises and in addition thereto may extend any present or future buildings on the north 51.1 feet of the leased premises over the present 10-foot alley in the rear of said premises when, as and if consent of all landowners whose property abuts on the above described 10-foot alley is obtained, any such building over said alley to have at least twelve (12) feet six (6) inches of headroom over the alley with the further right to use two (2) feet of the land belonging to the herein landlord just east of and adjacent to the present 10-foot alley to provide footings for extended building and for the rear wall of said extended building; no part of such support or wall shall encroach on said alley; the tenant may, with written consent of landlord, demolish, in whole or in part, existing building or any building subsequently erected on the demised premises and the two (2) foot additional strip and thereupon shall be under the obligation to promptly erect a new building or buildings thereon from time to time of at least equal value and quality, the improvements at no time to exceed four stories and basement; provided, however, that any new roof put on building by tenant shall be a guaranteed roof, having a minimum guarantee of twenty (20) years, provided such guaranteed roof is available at that time; however, the right of demolition given to F. W. Woolworth Co., as to Tract B, effective when possession is given to said sublessee, shall be controlled by the terms of sublease, to which landlord has assented; the landlord agrees that the tenant may, from time to time, during the term hereof, remove any wall or walls or partitions located within the building, may use any and all present elevators in leased premises and change their location, and make such changes in the interior of said building as will make it more suitable for uses of tenant; the landlord agrees that when tenant has submitted to it plans and specifications for alterations and improvements proposed to be made by tenant, with a written statement that improvements are ready to be started, and with certificate from competent architect that improvements contemplated will be structurally sound, landlord, as a part of the consideration of this lease, will make available to tenant $60,000 to be applied toward the building cost of making desired alterations, remodeling and additions to building, including engineering and architectural fees incident thereto, all other such expense to be borne by tenant, but said sum of $60,000 shall be made available only for such additions to building, structural changes in building, relocation of elevators or installation of new elevator equipment, construction of new, or relocation of present toilet facilities, relaying of floors or construction of new floors, construction of new front, making of necessary
alterations so that basement space may be made available for use as restaurant space, or any other type of change that is not solely decorative in nature, including engineering and architectural fees incident thereto; payments from $60,000 fund shall be paid in semi-monthly payments on the 1st and 15th of each month after construction has begun, upon certificate from architect as to amount of expenditures made during the previous half-month period which are properly chargeable to said $60,000 fund and in amount approved by architect; tenant agrees that any alterations, additions and changes and any new buildings which shall remain on the demised premises at the end of the term of this lease, or any extension thereof shall be considered as improvements to and become a part of the real estate of the landlord and the tenant shall have neither the right nor the obligation to remove the same, nor to change such structure or restore the premises to the condition in which they were originally, except tenant will be under the obligation to see that its sublessee, F. W. Woolworth Co., complies with its covenants for restoration and removal as provided in paragraph 18 of the sub-lease between tenant and F. W. Woolworth Co.
"The landlord agrees that if it fails to pay any instalment of taxes or any interest, principal, costs or other charges upon any mortgage or mortgages or other liens and encumbrances hereafter affecting the demised premises for which it is responsible under the terms of this lease, when any of the same become due, or if it fails to make any repairs or do any work required by the provisions of this lease, or in any other respect fails to perform any of the covenants and agreements in this lease contained, then and in any such event or events, after the continuance of any such failure or default for ten (10) days after notice in writing thereof is given by the tenant to the landlord herein, the tenant may pay, but shall not be obligated so to do, said taxes, assessments, interest, principal, costs or other charges and cure such defaults all on behalf of and at the expense of the landlord, and do all necessary work and make all necessary payments in connection therewith, and the landlord herein agrees to pay to the tenant forthwith the amount so paid by the tenant to cure any such default, together with interest thereon at the rate of four percent (4%) per annum, and it agrees that the tenant may withhold any and all rental payments and other payments thereafter becoming due to the landlord pursuant to the provisions of this lease or any extension thereof and may apply the same to the payment of such indebtedness of the landlord to the tenant until such indebtedness is fully paid with interest thereon as herein provided. Nothing herein contained shall preclude the tenant from proceeding to collect the amount so paid by it as aforesaid without waiting for rental offsets to accrue, and if at the expiration of this lease or any extension thereof, there shall be any sums owing to the tenant, this lease may, at the election of the tenant, be extended and continue in full force and effect, on the terms and at the rent herein provided, until May 1st following the date when the indebtedness owing to the tenant shall have been fully paid; however, in order to entitle the tenant to remain in possession after expiration of this lease, under the terms of this paragraph tenant must give sixty (60) days' written notice before expiration of said lease of any default and amount claimed by tenant in order that landlord may have opportunity to cure default before expiration of lease.
"In event the entire demised premises shall be taken for public use by authority of eminent domain, then and in that event this lease shall terminate and come to an end as of the date of such taking, and if the award apportions separate damages for the landlord and for the tenant, tenant shall be limited to the amount awarded to it; if no award is made to tenant and the award of damages is to landlord only, and include damages to tenant, the tenant shall be entitled to a just and proportionate amount of said award.
"In the event of a taking by authority of eminent domain for public use of a portion of the demised premises, such portion not to exceed 10% thereof, this lease shall remain in full force and effect and the landlord, as soon after the taking as is practical, using due diligence, will restore the walls and/or front of the demised premises using like material and workmanship as existed before such taking, to the end that the tenant shall have a completed building but of lesser dimensions and the yearly rental shall be reduced in the ratio that the square foot area of the demised premises so taken shall bear to the square foot area of the demised premises before such taking, and in such event tenant waives any claim to share in any damages to the landlord.
"This lease shall create the relationship of landlord and tenant between the landlord and tenant. No estate shall pass out of landlord; tenant has only a usufruct not subject to levy and sale."
The defendant demurred generally as follows: "There is no allegation of fact in count 1 of the petition to set out a cause of action against this defendant. There are no allegations of fact in count 2 of the petition to set out a cause of action against this defendant."
The trial judge overruled the demurrer. The defendant excepted and the ruling is here for review.
The plaintiff in error, Trust Company of Georgia, is referred to in this opinion as the defendant, and the defendant in error, S. & W. Cafeteria, as the plaintiff.
Count 1 alleges that the defendant agreed by the terms of the contract to pay all taxes assessed against the leased premises; that if it failed to pay the taxes, the plaintiff after ten days' notice to the defendant of such default, would be at liberty to pay the taxes and require reimbursement from the defendant of the amount expended for the purpose.
The defendant urges that count 1 set forth no cause of action because it appeared from the allegation of count 1 that it was the plaintiff's duty to pay the taxes assessed against its leasehold estate, and that there was no obligation on the defendant's part either to pay these taxes or to reimburse the plaintiff the sum expended for this purpose.
Count 1 contained averments that the plaintiff gave the defendant the ten days' notice required by the contract, paid the taxes assessed against its leasehold interest, demanded reimbursement of the defendant, and that the demand was refused.
The plaintiff's right of recovery under the first count depends upon whether the defendant was bound to pay the taxes assessed against the leased premises.
The defendant contends that the count set forth no cause of action because it affirmatively revealed that the taxes paid by the plaintiff were assessed not against the leased premises, but against the plaintiff's leasehold; that the assessment was as a matter of law payable by the plaintiff and that the defendant was by the provisions of the lease contract neither bound to pay the taxes nor to reimburse the plaintiff in the amount of its outlay for the purpose.
Perusal of Georgia cases discloses similar definitions which we think are equally applicable to the point made by the defendant. In Murphey v. State, 115 Ga. 201 (41 S. E. 685) is such a definition, and in Snook & Austin Furniture Co. v. Steiner & Emery, 117 Ga. 363, 370 (43 S. E. 775) it is said: "It is important, if possible, to define the word 'premises.' It has varied meanings; it is a word frequently used in conveyances, and, unless there is something to qualify the meaning, generally refers to real-estate. In a contract to sell the 'premises Nos. 2-10 Peachtree Street', it would include the land on which the buildings were located. McMillan v. Solomon, 42 Ala. 356; cf. White v. Molyneux, 2 Ga. 124."
We have carefully considered the definitions of the word "premises" suggested by the defendant, for indeed, upon the true meaning of the word, if it should be held that the lease contract conveyed an estate for years and not a mere usufruct, depends the sufficiency of count 1.
In a comparatively recent case, Deich v. Reeves, 203 Ga. 596, 599 (48 S. E. 2d 373), the word "premises" is defined, but the court makes it clear that the definition is not inflexible and that word must be construed in accordance with its context. As a matter of course the word must be given meaning in harmony with the other provisions of the contract in which it is contained so as to give reasonable and rational import to the whole instrument.
We find other definitions of the word "premises" illustrative of the fact that it may be as aptly applied to estates in realty as to the physical property.
"The term 'premises' is used in common parlance to signify land with its appurtenances; but its usual and appropriate meaning in a conveyance is the interest or estate demised or granted by the deed." Solomon v. Neisner Bros., (D.C. Pa.) 93 Fed. Supp. 310, 314; State v. French, 120 Ind. 229 (22 N. E. 108); Cooper v. Robinson, 302 Ill. 181 (134 N. E. 119).
While in some cases it is held that the word "premises" when used in an instrument without qualification means lands and buildings, in this case the word could not be said to be unqualified, because the other provisions of the contract clearly indicated that the defendant in agreeing to pay taxes assessed against the premises intended to pay the taxes on the interest or estate leased to the plaintiff.
If the defendant's definition of the word be accepted the word "premises" is synonymous with realty. In that event the sufficiency of count 1 is settled by a Code section. Code 85-101 reads: "The term 'property' is used not only to signify things real and personal owned, but to designate the right of ownership and that which is subject to be owned and enjoyed."
Under 16 Okla. St. Ann: 14, the word "premises" and the word "land" when used in instruments relating to real property are synonymous. Kimbro v. Harper, 113 Okla. 46 (238 Pac. 840, 844).
The conclusion is inescapable that an agreement to pay tax assessed against premises includes the tax that may accrue against the premises and every estate or interest therein.
Moreover, the lease contract attached and made a part of the petition clearly revealed that it was the intention of the parties to the instrument that the defendant pay the taxes that accrued against the leased property, and that the plaintiff be relieved of that burden. That ascertainment of the parties' intention is the cardinal rule of construction (Code 20-702), is a rule of logic and reason. This is true because the sole purpose of a contract is to give expression to that concerning which the minds of the parties have met. In the lease contract we have considered not only paragraphs that provide that the defendant was to pay the tax assessed against the premises, and that if the plaintiff paid the taxes the defendant would refund the amount expended for the purpose, but paragraph 28 stipulates that only a usufruct was vested in the lease.
These provisions can be given no rational interpretation except that it was the intention of the parties that the lessor and not the lessee pay the taxes which might be assessed against the realty and every interest in the same.
In our opinion count 1 of the petition set forth a cause of action and was not subject to general demurrer.
Count 2 alleges that the defendant induced the tax assessors of the City of Atlanta and Fulton County to reduce the valuation of the leased premises by deducting therefrom the value of the plaintiff's lease, and persuaded the tax assessors to levy that amount against the leasehold interest or usufruct vested in the plaintiff by the terms of the lease contract. The count further alleged the payment of the taxes by the plaintiff, and the refusal of the defendant to reimburse the plaintiff the amount expended.
The defendant objected to the sufficiency of count 2 because: (1) The payment was, as the defendant insists, a voluntary payment for which recovery could not be had. There are citations of authorities as to the nature of a voluntary payment. The only case we find decided by a Georgia court in reference to voluntary payment of another's taxes is Smith v. Carter, 44 Ga. App. 438 (161 S. E. 649) where it was held a payment of taxes by one under no duty to pay the taxes, when not induced or authorized by the party who owes the tax is a voluntary payment for which there is no right of recovery.
In the instant case the payment of the tax by the plaintiff was not a voluntary payment because as we held in the discussion of the sufficiency of count 1, the lease contract authorized the plaintiff to pay the tax assessed against the leased premises.
(2) The defendant contends the second count undertakes to set forth a right to recover for money had and received; that there being no allegation that the defendant was, when the suit was filed, possessed of any money or its equivalent which was rightfully the plaintiff's, the count set forth no cause of action. Authority is cited to support the position. Lary v. Hart, 12 Ga. 422.
If the ground of recovery was based on the theory of money had and received the defendant's contention would be correct. But as we have previously noted the cause set out in count 2 was for the breach of contract and unjust enrichment. The allegations of count 2 amply alleged a suit for breach of contract as did the averments of count 1. But the averments of count 2 go further and allege that the defendant procured the tax assessors of the city and county to assess tax which it legally owed against the leasehold or usufruct which the plaintiff had in the leased premises. The effect of the allegation was to charge that the defendant unjustly enriched itself at the plaintiff's expense.
Where one unjustly obtains a pecuniary advantage of another to which he is not legally entitled and refuses to make restitution, an action for unjust enrichment lies. The action rests upon the same general principles as a suit for money had and received, but in an action based on unjust enrichment it is not essential that the defendant come into possession of money or property, but simply that he be unjustly enriched by obtaining some financial advantage of the plaintiff. The unjust acquisition of advantage is the gist of an action for money had and received. Bass v. Cates, 74 Ga. App. 363, 369 (39 S. E. 2d 550).
Illustrative of what has been written as distinguishing the nature of the two causes are several cases. In the case of Lary v. Hart, 12 Ga. 422
, supra, it is held essential to an action for money had and received that the defendant obtain possession of "money or its equivalent" which belongs to the plaintiff, while the books are replete with cases in which actions for unjust enrichment, the benefit flowing to the defendant, was an intangible advantage, such as services. One of these cases is Sellers v. City of Summerville, 88 Ga. App. 109
, 115 (76 S. E. 2d 99).
We have considered the question as to whether the allegations of count 2 commit the plaintiff to the proposition that the plaintiff's interest was a mere usufruct which neither constituted an estate in the leased premises and was not subject to taxation. Granting the interest of the plaintiff was only a usufruct the fact remains, according to the averment of the petition, that the assessment was made not against a mere usufruct, but against an estate in the leased premises, which was in effect an assessment against the premises.
In paragraph 14 of the petition is the specific allegation that the taxes were assessed against the "leasehold and reversionary estates in the premises" and that the assessment was divided between the two estates held respectively between the plaintiff and the defendant.
In view of the conclusions reached the question of whether the petition pleaded estoppel is unnecessary but appropriate in the decision of the case.
The petition charged the defendant was estopped to deny for two reasons that the plaintiff had the right to pay the taxes and require reimbursement from the defendant for the amount expended for the purpose. The alleged reasons were: The defendant represented to the plaintiff that the assessment was proper and that the plaintiff was liable for the taxes. The defendant induced the city and county tax assessors to assess the taxes against the plaintiff by convincing those officials that the plaintiff owned an estate for years in the leased premises and was liable for the taxes.
The defendant correctly contends that the mere expression of a legal opinion does not ordinarily work an estoppel against its author. Claxton Bank v. Smith, 34 Ga. App. 265
(129 S. E. 142); Salter v. Brown, 56 Ga. App. 792
(193 S. E. 903); National Life &c. Ins. Co. v. Parker, 67 Ga. App. 1
(19 S. E. 2d 409); Hart v. Waldo, 117 Ga. 590
(43 S. E. 998); Manget Realty Co. v. Carolina Realty Co., 169 Ga. 495
, 504 (150 S. E. 828); Swofford v. Glaze, 207 Ga. 532
, 535 (63 S. E. 2d 342); Dixon v. Dixon, 211 Ga. 557
, 563 (87 S. E. 2d 369).
But the averments of the petition sufficiently pleaded the estoppel claimed by the plaintiff. This is true because the petition alleged that the defendant had induced the city and county tax assessors to make the levy of taxes later paid by the plaintiff, by representing to those officials that an estate for years in the leased premises was by the terms of the contract passed to the plaintiff.
A litigant having, even prior to the institution of legal proceedings, assumed and prevailed in a legal position is estopped to recede from such position after litigation is begun when detriment would thereby result to an opposite party. Cornelius v. Anderson, 25 Ga. App. 183, 184 (2a) (102 S. E. 925); Frank & Meyer Neckware Co. v. White, 29 Ga. App. 694 (116 S. E. 855); Kaufman v. Young, 32 Ga. App. 135 (122 S. E. 822); Bryan Bank v. Carter, 57 Ga. App. 519 (196 S. E. 228); Rogers v. Miller Peanut Co., 73 Ga. App. 379 (36 S. E. 2d 362); Carter v. Carter, 80 Ga. App. 172 (1) (55 S. E. 2d 721). The cases cited are admittedly not precisely in point but were decided upon the same principle.
The second count of the petition was not subject to general demurrer.