Opinion
39785.
DECIDED JANUARY 18, 1963. REHEARING DENIED FEBRUARY 6, 1963.
Breach of lease contract; damages. Fulton Civil Court. Before Judge Wright.
Ernest D. Brookins, G. Ernest Tidwell, Edwin W. Ross, for plaintiff in error.
Sidney I. Rose, Rose Lappas, Hugh A. Wills, contra.
This being a suit brought ex contractu to recover damages for breach of a written contract of lease, the plaintiff corporation must necessarily show that it was a party to the contract sued upon by assignment from the assignees of the original lessee (no question of third party beneficiary being involved herein); and, said contract being in writing, the petition must affirmatively show that the transfer or assignment was in writing in order to withstand the defendants' general demurrer.
DECIDED JANUARY 18, 1963 — REHEARING DENIED FEBRUARY 6, 1963.
This was a suit for damages for breach of a written contract of lease brought in the Civil Court of Fulton County, the plaintiff corporation alleging that it had been constructively evicted from the leased premises by the refusal of the defendant lessors to repair the same in accordance with the terms of the lease agreement, and seeking to recover the sum of $29,000.40 which represented the alleged difference between the contract rental price of the premises and the actual rental value of the premises for the remaining term of 60 months under the lease agreement sued upon. The petition disclosed that said contract of lease was executed by the defendants as lessors and John Petkas as lessee in April, 1950, said lease being for a term of 10 years commencing on June 1, 1950, and ending on May 31, 1960; that on March 6, 1956, John Petkas, the original lessee, with the written consent of the defendant lessors subleased the premises to three named parties for the remainder of the life of the lease; and that on January 9, 1957, the sublessees exercised an option renewing and extending the term of the original lease to May 31, 1965. The petition further alleged that the corporate existence of the petitioner commenced on April 5, 1957, and that from on or about said date the plaintiff corporation began to operate a restaurant business in the building on said premises, and became the tenant of said premises in lieu of the former tenants, that is, the three sublessees. It was alleged that the tenancy of the corporation was known, recognized, accepted and consented to by the defendants; and that during the time of petitioner's tenancy until the occurrence of the acts complained of (the alleged constructive eviction) the defendants performed according to their obligations, covenants, and agreements contained in the original lease to John Petkas and petitioner performed according to the obligations, covenants, and agreements in said original lease (for example, paying the agreed amount of rent); and that in all respects petitioner and defendants treated the original lease as assigned to the petitioner by the previous tenants with the consent of defendants. The petition further set forth the acts complained of as constituting the breach of the lease agreement by the defendant lessors; and the various agreements hereinbefore mentioned were set forth as exhibits to the petition.
Paragraph 10 of the original lease agreement provided that the lessee could not, without the prior written consent of the lessor endorsed thereon, assign the lease or any interest thereunder. The petition neither alleged that the defendant lessors had consented in writing to an assignment of the lease agreement to the plaintiff corporation nor that the lease agreement had in fact been assigned to the plaintiff corporation by the named sublessees.
The defendants' general demurrer to the petition as amended was sustained and the plaintiff corporation has excepted to that judgment.
The trial court did not err in sustaining the general demurrer to the petition of the plaintiff corporation for the reason that it was not alleged in said petition that there had been a written assignment of the lease agreement by the assignees of the original lessee to the plaintiff corporation. This being a suit brought ex contractu to recover damages for breach of a written contract, the plaintiff corporation must necessarily show that it was a party to the contract sued upon by assignment from the assignees of the original lessee (no question of third party beneficiary being involved herein) ( Code Ann. § 3-108); and, said contract being in writing, the petition must affirmatively show that the transfer or assignment was in writing in order to withstand the defendants' general demurrer. Merchants Grocery Co. v. Shawnee Milling Co., 86 Ga. App. 848, 851 ( 72 S.E.2d 797); Alropa Corp. v. Richardson, 58 Ga. App. 656, 657 ( 199 S.E. 666).
The contention of the plaintiff corporation that the allegations of the petition were sufficient to show a waiver by the defendant lessors of the provisions of the original lease agreement requiring that any assignment by the lessee must be consented to in writing by the lessors in order to be valid, is unavailable here for the reason that the petition does not show that the interest of the sublessees had in fact been transferred or assigned in writing to the plaintiff. In the absence of an assignment to the plaintiff by the assignees of the original lessee, the plaintiff, as a mere stranger to the contract, could not assert any rights thereunder or invoke any waiver of rights by the defendant lessors.
The contention of the plaintiff corporation that the allegations of the petition were sufficient to show a waiver by the defendant lessors of the provisions of the original lease agreement requiring that any assignment by the lessee must be consented to in writing by the lessors in order to be valid, is unavailable here for the reason that the petition does not show that the interest of the sublessees had in fact been transferred or assigned in writing to the plaintiff. In the absence of an assignment to the plaintiff by the assignees of the original lessee, the plaintiff, as a mere stranger to the contract, could not assert any rights thereunder or invoke any waiver of rights by the defendant lessors.
The allegations of the petition, when construed most strongly against the pleader, show that the plaintiff corporation occupied the leased premises as a tenant at will by virtue of an oral agreement between the defendant lessors and the plaintiff corporation and do not disclose the requisite privity of contract between the plaintiff corporation and the defendants to allow recovery in an action at law instituted by the plaintiff in its own name for damages arising from the alleged breach of the terms of the lease agreement. Kohn v. Colonial Hill Co., 38 Ga. App. 286 (1) ( 144 S.E. 33).
Judgment affirmed. Nichols, P. J., and Frankum, J., concur.