Opinion
37716.
DECIDED SEPTEMBER 15, 1959.
Dispossessory proceedings. Barrow Superior Court. Before Judge Clinkscales. January 24, 1959.
Russell Russell, Richard B. Russell, III, for plaintiff in error.
Marvin D. Pierce, Jr., Robert J. Reed, contra.
The lease involved here contains a covenant that the "lessor grants lessee two 5 years options to re-lease this property on the same terms and conditions as the first lease [which was for five years]. If lessee exercises his option to re-lease on September 15, 1957, then he has another option to re-lease at the expiration of the first option, only the rental on the second option will be $50 per month." Such a lease is a valid and binding agreement on the lessor and lessee and/or assigns, where the lessee fully complies with all terms and conditions of the original lease and gives legal notice to the administratrix of the estate of the lessor of the lessee's intention to exercise such option for another five years beginning September 15, 1957, and terminating September 15, 1962.
DECIDED SEPTEMBER 15, 1959.
On or about September 15, 1952, "an agreement of lease" was made and entered into between Clarence Simmons, as lessor, and Save-Way Oil Company, a corporation, as lessee, whereby the lessor did let and lease to the lessee certain premises in Winder, Barrow County, Georgia, for a term of 5 years from the date of the lease for a monthly rental of $37.50. This instrument provided, among other things, that "lessor grants lessee two 5 years options to re-lease this property on the same terms and conditions as the first lease. If lessee exercises his option to re-lease on September 15, 1957, then he has another option to re-lease at the expiration of the first option, only the rental on the second option will be $50 per month." On or about February 19, 1955, G. W. Thomas, Jr., purchased the premises so let to said Save-Way Oil Company from Simmons "together with the said described lease and did accept the terms and conditions of said lease and did further accept the rents pursuant to the terms of said lease until the death of said G. W. Thomas on or about the 17th day of November, 1956." The rent was paid thereafter, pursuant to the terms and conditions of the lease, and accepted by Evelyn S. Thomas, as administratrix of the estate of the deceased G. W. Thomas, up to and through the expiration date of the original lease, September 15, 1957. It appears that no rent was accepted by the administratrix from said lessee after September 15, 1957, "even though same has been tendered in cash on or before the due date of each month since the initial expiration date of said lease." On August 12, 1957 (prior to September 15, 1957), the lessee addressed the following registered letter to the administratrix: "Under lease agreement that we have with Clarence G. Simmons, dated September 15, 1952, we have an option to extend this lease for another 5 years under the same terms and conditions. This is to advise that we wish to exercise this option and lease the property for 5 more years beginning September 15, 1957, and extending to September 15, 1962."
Thereafter, on October 29, 1957, the administratrix brought dispossessory proceedings against the Save-Way Oil Company, as a tenant holding over. The affidavit was filed in a justice court of Barrow County and the warrant was issued by the justice. On October 31, 1957, said lessee, Save-Way Oil Company, filed its counter-affidavit and executed a good and sufficient bond as required by law.
Said case came on for a hearing before the Hon. Maylon B. Clinkscales, Judge of the Piedmont Judicial Circuit, presiding in Barrow Superior Court, and was heard by the judge without the intervention of a jury. The facts as above enumerated appeared under a stipulation of facts, and neither the record nor the stipulation of facts shows that the lessee had violated in any manner any of the terms and covenants of the lease agreement of September 15, 1952, as made by said Simmons, as lessor, to said corporation, and which was acquired by G. W. Thomas, Jr., now deceased, and of whose estate Mrs. Evelyn Segars Thomas is administratrix.
On January 24, 1959, the trial judge rendered judgment in favor of the administratrix and against the lessee, and stated therein: "It is the finding of the court that the contract between the parties does not contain a valid and enforceable option to renew, the contract had terminated, and the defendant is holding the premises described in the dispossessory warrant over and beyond the term of the said contract. That the plaintiff is entitled to the possession of the premises together with rent therefrom from 15th day of September, 1957, together with the costs of court." The court then ordered the clerk to issue a writ of possession and ordered that the plaintiff recover of the defendant $628.80 principal, plus court costs.
To this judgment the Save-Way Oil Company excepted and assigns the same as error in a direct bill of exceptions to this court.
The lease agreement between Simmons and the defendant, Save-Way Oil Company, was a valid lease contract, and according to the stipulation of facts the property included in this lease agreement was acquired by G. W. Thomas, Jr., by purchase. The rent was paid and all other terms and agreements therein appear to have been complied with by the corporate lessee. It was provided in the written lease that the lessee should have two 5-year renewals and that if it desired to exercise such option, notice in writing should be given to the lessor. The record shows that none of the terms, conditions and convenants of said lease agreement had been violated, yet the trial court held that the option agreement was ineffective, sustained the dispossessory proceedings, rendered judgment against the lessee for all rents and costs and issued a writ of possession. How and wherein this option agreement, based upon a valid consideration, was not binding, upon the compliance by the lessee with the terms and covenants of the lease agreement and lessor's timely notice in writing that it desired to renew such lease for another 5 years, by writing such notice to the administratrix of Thomas who acquired said lease, does not appear. The option provision in said lease agreement is clear, distinct and definite and the lessee complied therewith. Such provision in said lease was binding on the original lessor and on Thomas who purchased the property and said lease agreement. See Pritchett v. King, 56 Ga. App. 788 (3) ( 194 S.E. 44), holding that where a "lease contract provides that at the expiration thereof, the lessee `shall have the option of renewal thereof, for a period of not less than one year or for such time as the lessor renews said lease for himself', at a stipulated rental and upon the same terms as contained in the lease, and before the expiration of the lease, the lessee gives notice in writing to the lessor of his intention to renew new the lease, this so operates to extend the term as provided in the lease as to defeat an action by the lessor to dispossess the lessee, although no new lease was actually executed." Furthermore, see page 791 of the Pritchett case wherein this court ruled that "Covenants to renew, incorporated in a lease are . . . valid and enforceable and are supported by the consideration of the lease, and such covenants are not required to be in any technical form." The stipulation in the lease agreement giving to the lessee the option to re-lease is not a separate agreement but a part of the original lease agreement, none of the terms, conditions and convenants of which had been breached by the lessee. See Crawford v. Smith, 151 Ga. 18, 19 ( 105 S.E. 477). The defendant lessee was not subject to be expelled from the leased premises, as a tenant holding over. Slater v. Kimbro, 91 Ga. 217 ( 18 S.E. 296, 44 Am. St. Rep. 19).
It follows that the trial court erred in rendering judgment against the lessee in this case.
Judgment reversed. Townsend and Carlisle, JJ., concur.