Opinion
32566.
DECIDED JULY 14, 1949. REHEARING DENIED JULY 28, 1949.
Dispossessory warrant; from Taliaferro Superior Court — Judge Perryman. April 16, 1949.
Miller Head, for plaintiff.
Osgood O. Williams, Earle Norman, for defendant.
1. ( a) A dispossessory-warrant proceeding for the recovery of premises leased in writing is not a case founded on an unconditional contract in writing, since the action is not based on the lease.
( b) Where the affidavit on which the dispossessory warrant is based charges that the rent is not paid in accordance with the terms of a written lease, and where the counter-affidavit alleges that no provision of the lease has been violated, in the absence of a special demurrer this is a sufficient response to the first affidavit.
2. A party to a contract may, by its terms, waive the benefits of a statutory provision where the rights of third parties are not involved, unless such waiver violates public policy.
DECIDED JULY 14, 1949. REHEARING DENIED JULY 28, 1949.
The plaintiff in error, Frank A. Holden, herein referred to as the plaintiff, sued out a dispossessory warrant on January 4, 1949, in the Superior Court of Taliaferro County against Royal Manufacturing Company, herein referred to as the defendant. The plaintiff's affidavit recited that the defendant fails to pay rent now due on the premises, and is holding over beyond the term for which the premises were leased, because of certain alleged violations of the lease by reason of the use of the property for purposes not permitted therein; and that demand has been made and possession refused.
On the same day the defendant filed its counter-affidavit and bond. The former recited that the defendant is not holding possession beyond its term, that its term of rent has not expired, and that it has not violated its lease in any manner and is legally in possession of the premises under the lease.
Upon the call of the case, counsel moved to enter a default judgment for the plaintiff under Code § 110-406, as amended, which states, "The court, at the term at which the case is returnable, shall render judgment without the verdict of a jury in all civil cases founded on unconditional contracts in writing where an issuable defense is not filed under oath or affirmation on or before the appearance day as to such case, and where the case is still in default."
In the motion, counsel for the plaintiff contended that no issuable defense had been filed, in that the counter-affidavit nowhere denied one of the grounds of the plaintiff's affidavit, that the tenant fails to pay the rent now due. At the close of his motion, counsel stated: "There is no response on the face of the counter-affidavit to that, and the plaintiff moves to strike and dismiss the response and enter a default judgment."
The motion was overruled, and the plaintiff preserved his exceptions pendente lite. The case then proceeded to trial and, at the conclusion of the evidence, a verdict for the defendant was directed.
To the overruling of his motion for a new trial as amended, and to the overruling of his motion to enter a default judgment, the plaintiff brings error.
1. If the motion of the plaintiff's counsel be considered as one merely to declare the case in default under Code (Ann. Supp.) § 110-406, it is obvious that it is without merit. That statute authorizes the court to enter judgments upon "civil cases founded on unconditional contracts in writing." A judgment could not have been entered on the lease contract in accordance with this statute, as the case is not an action on the lease, but is one to recover the premises.
Counsel for the plaintiff did, however, in his oral motion, rephrase the same and ask that the court strike and dismiss the counter-affidavit on the ground that it is not responsive to the affidavit on which the dispossessory warrant is based.
It is alleged that the tenant is holding over beyond the term for which said premises were leased, etc. The counter-affidavit in this respect states that "the term of lease has not expired, and it is not holding possession over and beyond its term."
While the counter-affidavit does not expressly and in so many words deny the allegation in the first affidavit "that the tenant fails to pay the rent now due on said realty and premises," yet the counter-affidavit does contain the following: "Said Royal Manufacturing Company Inc. has not violated its lease in any manner whatsoever, and said Royal Manufacturing Company Inc. is legally in possession of the described premises under said lease."
The lease is not set up either in the original affidavit or the counter-affidavit. However, reference is made to it in both. Therefore, any obligation to pay rent must be by virtue of the lease. If the terms of the lease have in no way been violated, the rent could not be past due, and while the denial of this allegation is such that on special demurrer amendment could probably be required, it is not subject to general demurrer or oral motion to strike. For a discussion of when an oral motion to strike is the proper remedy and when a special demurrer must be interposed in a dispossessory-warrant proceeding, see Ralls v. E. R. Taylor Auto Co., 202 Ga. 107 ( 42 S.E.2d 446), and cases there cited.
2. The plaintiff further contends that the trial court erred in directing a verdict for the defendant, in that this was a violation of his right, under Code § 61-301, which provides as follows: "In all cases where a tenant shall hold possession of lands or tenements over and beyond the term for which the same were rented or leased to him, or shall fail to pay the rent when the same shall become due . . the owner . . may go before . . any justice of the peace and make oath to the facts."
The evidence disclosed that the plaintiff and the defendant had entered into a ten-year lease, providing for rental of $75 per month for the years 1945 through 1949, and $100 per month from January, 1949, through June, 1955. A letter dated June 2, 1948, from the plaintiff to the defendant was introduced and contained the statement that "rental will be strictly required to be paid precisely on its due date, the first of each month hereafter."
On January 1, 1949, the due date, the defendant mailed to the plaintiff its check for $75, which the landlord returned and forthwith sued out a dispossessory warrant on January 4, 1949. Tender of the full rental of $100 was made on the same day and refused, and thereupon the counter-affidavit was made.
Paragraph 3 (b) of the lease contract is as follows: "If tenant shall fail to pay the rent as provided for in paragraphs 2A and B hereof, landlord may demand payment in writing by registered mail addressed to tenant at Tiglhman and Jordan Streets, Allentown, Pa., and tenant shall have ten days from the date of said notice in which to pay all sums due under said lease agreement and upon failure to make such payment or payments within said ten-day period, landlord shall have the right to declare said lease void, cancel the same and take possession of the premises, but said cancellation shall not relieve tenant from the payment of all past due sums." The plaintiff contends that the use of the word "may" as applied to the landlord's notice means simply that he may give such notice if he so desires, but that this agreement imposes no obligation upon him to do so, and does not bar him from the remedy given him under the Code of suing out a dispossessory warrant for non-payment of rent.
Properly construed, the provision of the lease set forth herein means that, if the landlord desires to repossess his premises when the rent is in arrears, which he may or may not do, he must demand payment in writing by registered mail addressed to the tenant at Tiglhman and Jordan Streets, Allentown, Pa. The tenant then has ten days from the date of such notice in which to pay the rent. If he fails to do so, the landlord then has the right to declare the lease void, cancel it, and proceed to recover the premises.
In Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797 (2) ( 72 S.E. 295), this court held that " a person may lawfully waive the benefit of a statutory provision where the rights of third persons are not involved, unless such waiver violates public policy." The Code section upon which the plaintiff relies is one providing an additional right or benefit to landlords as a class, and whether or not the landlord wishes to waive this benefit is a matter purely within his discretion. Once he has done so, he cannot thereafter complain that he is being deprived of a right conferred on him by statute. For other examples of a valid waiver of the provisions of this Code section, see Guptill v. Macon Stone Supply Co., 140 Ga. 696 ( 79 S.E. 854), and Hicks v. Beacham, 131 Ga. 89, 92 ( 62 S.E. 45).
Sinclair Refining Co. v. Giddens, 54 Ga. App. 69 ( 187 S.E. 201), relied upon by the plaintiff as an authority requiring a different conclusion from that here reached, is distinguishable by the fact that in that case the tenant was operating a service station which constituted the leased premises, and the rental was a percentage of the sales made by him. He had there breached his contract by ceasing to operate the business. It was there held that, although the lease provided that, in the event the lessee shall be in default in the payment of the rent, or otherwise, and shall remain in default after 30 days after notice in writing from the lessor to the lessee of such default, the lessor shall have the privilege of terminating the lease and declaring it at an end, the landlord could proceed to dispossess the tenant without awaiting that period because the tenant had already breached the lease in a matter so substantial and fundamental as to defeat its purpose. The construction of the lease controls this case as a matter of law and, there being no issue of fact for determination by the jury, the trial court properly directed a verdict for the defendant.
It follows that the judgments of the trial court overruling the plaintiff's motion to dismiss and the amended motion for a new trial are without error.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.