Opinion
55599.
ARGUED APRIL 5, 1978.
DECIDED MAY 9, 1978.
Action on lease. Muscogee Superior Court. Before Judge Smith.
Charles A. Gower, for appellant.
Waldrep Williams, Joseph L. Waldrep, for appellees.
Abell and Harden entered into a lease agreement whereby Abell rented "certain improved real property ... known and distinguished as Lot 5, Block D, Rosemont Annex as the same appears upon a map or plat thereof recorded in the Office of the Clerk of the Superior Court of Muscogee County, Georgia, in Plat Book 3, Page 144, to which reference is made for a more particular description..." Lot 5 as shown on the plat is bordered by the Manchester Expressway on the south, and by an abandoned street right-of-way, now denominated as Lot 5A, to the east. Lot 5 shows a frontage of 79 feet and Lot 5A is 61.75 feet. Abell thought he had leased the total frontage of approximately 140 feet. He constructed a building on Lot 5 and on several occasions utilized the abandoned roadbed or permitted others to use it. Subsequently Harden sold Lot 5 and Lot 5A to appellees Estes and Prince, who have since denied Abell any right to use Lot 5A. This suit was initiated and defendants filed a motion for summary judgment based primarily on the plat of record and the lease agreement, contending that there were no genuine issues of material fact. It was granted, and Abell appeals.
Abell's complaint alleged that the lease agreed to was for the property known as 2627 Manchester Expressway having a frontage of approximately 139 feet, but that the lease as actually signed was only for property with a frontage of 79 feet. Harden responded that he "was aware at all times that he was leasing property with a frontage of only 79 feet." At the hearing it was shown that the lease agreement recites that it assigns to Abell the benefits and contract "relating to a billboard on the property..." (emphasis supplied), and that this billboard is in fact located on the abandoned roadbed. Thus the issue of mutual mistake was effectively raised by implied consent of both parties, and since questions of fact remain as to that allegation it was error to grant summary judgment. Chastain v. Simmons, 142 Ga. App. 615 ( 236 S.E.2d 678) (1977).
Judgment reversed. Quillian, P. J., and McMurray, J., concur.