Opinion
40366.
DECIDED NOVEMBER 27, 1963. REHEARING DENIED DECEMBER 17, 1963.
Breach of lease contract. DeKalb Civil and Criminal Court. Before Judge Mitchell.
Charles H. Wills, Paul C. Myers, for plaintiffs in error.
Walter E. Baker, Jr., contra.
The allegations of the petition set forth a cause of action against the defendant predicated upon his alleged breach of an executory contract to lease certain real property owned by the plaintiffs, and the trial court erred in sustaining the defendant's general demurrer.
DECIDED NOVEMBER 27, 1963 — REHEARING DENIED DECEMBER 17, 1963.
T. R. Nash and Mildred B. Nash filed suit against Dr. Charles A. Greenig to recover damages sustained by them as the result of the defendant's alleged breach of an executory contract to lease certain property owned by the plaintiffs. The petition alleged that on or about August 18, 1962, the defendant approached T. R. Nash and offered to lease a certain lot and building located at 6080 Memorial Drive, Stone Mountain, DeKalb County, Ga., for an initial term of five years at a monthly rental of $150 for the first year and $200 for the succeeding four years, with an option to renew for an additional five-year term at a rental of $200 per month, the initial term of said lease to commence upon the completion of the building then being constructed on said lot, which was understood by both parties to be on or before October 1, 1962. It was alleged that the defendant's offer was predicated upon certain enumerated alterations being made to the building then under construction, said alterations being represented by the defendant as being necessary to adapt said property for his intended use as a small animal hospital. The petition alleged that T. R. Nash, acting for himself and as agent for his wife, Mrs. Mildred B. Nash, who jointly owned the property with him, with full authority to bind her and with her consent and approval, accepted the defendant's offer and immediately commenced making the alterations and additions specified by the defendant. A copy of the alterations and additions agreed upon was attached to the petition as "Exhibit A."
It was alleged that the defendant confirmed his oral agreement with the plaintiffs on or about August 28, 1962, by writing a letter to T. R. Nash, a copy of which was attached to the petition as "Exhibit B," in which he substantially set forth the general terms of the lease agreement, referred to the requested changes, and designated said writing as a "binder and a commitment" on the defendant's part to lease the property from the plaintiffs when the alterations and changes were completed.
The petition alleged that the plaintiffs proceeded to make the alterations and additions specified by the defendant who inspected the building almost daily during this time and repeatedly expressed his satisfaction with the alterations and with the speed with which they were being accomplished; but that on or about September 5, 1962, after all alterations requested by defendant had been completed with the exception of those specified in Item 5 of the attached "Exhibit A," the defendant advised T. R. Nash that he had changed his mind about leasing the property and inquired as to the amount of expense which Nash had suffered in making alterations and changes in said building pursuant to their agreement. Mr. Nash, the petition alleges, informed the defendant that he had expenses in excess of $2,000, and, since all alterations and changes made at the request of the defendant were unique and fitted the building for a small animal hospital, such alterations and changes did not in any way enhance the value of said property for other use.
The petition alleged that the defendant took the matter under advisement, and on or about September 5, 1962, wrote T. R. Nash a letter, a copy of which was attached to the petition as "Exhibit C," in which he stated that he was "withdrawing from negotiations." The plaintiffs alleged that they had made repeated demands on the defendant for payment but that he had failed and refused to pay; and damages were sought in the sum of $2,640.
The defendant's general demurrer to the petition was sustained, and the exception is to that judgment.
The allegations of the instant petition which averred that the defendant offered to lease certain property owned by the plaintiffs at a fixed monthly consideration and for a stated term which was to commence upon the completion of a building which was then being constructed on the property by the plaintiffs, provided that certain enumerated alterations and additions were made to said building in order to adapt it to the use intended by the defendant, and that the plaintiffs through T. R. Nash accepted said offer, and commenced making the alterations and additions agreed upon, were sufficient to show the execution of an executory contract to make a lease by the parties; and the fact that said contract was in parol did not render it void and unenforceable, as contended by the defendant, since the allegations of the petition showed sufficient part performance of an essential part of the agreement by the plaintiffs, as to bring it without the operation of the statute of frauds. Shell Petroleum Corp. v. Jackson, 47 Ga. App. 667 ( 171 S.E. 171). "A party to a parol contract which would ordinarily fall within the statute of frauds, who has so far performed the same as to render it a fraud for the other party to repudiate the agreement, is not prevented by the statute from recovering damages for its breach." McLeod v. Hendry, 126 Ga. 167 (1) ( 54 S.E. 949).
"Where a party bound by an executory contract repudiates his obligation before the time for performance, the other party has the option to treat the contract as ended so far as future performance is concerned, and to maintain an action at once for the damages occasioned by the breach. Crosby v. Georgia Realty Co., 138 Ga. 746 ( 76 S.E. 38). This is true whether the contract is wholly executory or has been partially executed. 13 CJ 653; Central Trust Co. v. Chicago Auditorium Asso., 240 U.S. 581 ( 36 SC 412, 60 LE 811, LRA 1917B, 580). The injured party may treat the renunciation as an immediate breach of the contract and sue at once for any damages which he may have sustained. Ford v. Lawson, 133 Ga. 237 ( 65 S.E. 444); Smith v. Georgia Loan c. Co., 113 Ga. 975 ( 39 S.E. 410)." Shell Petroleum Corp. v. Jackson, 47 Ga. App. 667, 670, supra.
The allegations of the petition in this case disclosed that the defendant repudiated his obligation to lease the property before the time for performance of the same but after the plaintiffs in performance of the agreement by the parties had expended a sum of money in conforming the building under construction to the defendant's specifications; and under the decision of this court in the Shell Petroleum case, supra, the plaintiffs under these alleged facts were entitled to recover for such damage as was actually sustained by reason of the alleged repudiation of the agreement to lease the property.
The trial court erred therefore in sustaining the defendant's general demurrer to the petition and that judgment must be
Reversed. Nichols, P. J., and Frankum, J., concur.