Fulton County v. Atlanta Envelope Company., 90 Ga. App. 623, 83 S.E.2d 866 (1954)
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Haas, Holland & Blackshear, M. H. Blackshear, Jr., contra.Harold Sheats, E. A. Wright, Durwood T. Pye, for plaintiff in error.
1. The court did not err in its rulings on the demurrers.
2. Under a contract of rental, as here, where the expiration date of the rental contract falls on Sunday, the law does not extend the terms of the rental contract to the day following Sunday.
On December 3, 1952, Atlanta Envelope Company, as party of the first part (hereinafter called the plaintiff), and Fulton County, party of the second part (hereinafter called the defendant), entered into a contract as follows:
"Whereas, the party of the first part is the owner of a tract of land on Northside Drive, in Atlanta, Fulton County, Georgia; and,
"Whereas, the party of the first part has heretofore made a deed to the State Highway Department of Georgia covering certain lands belonging to it to be used in conjunction with the northwest leg of the Expressway in Fulton County, Georgia; and,
"Whereas, the State Highway Department of Georgia has called upon the party of the second part to secure from the party of the first part a temporary easement or the right to construct a temporary detour road (which temporary detour road is herein after referred to as the 'road') over the land of the party of the first part adjoining on the west side of the property heretofore conveyed to second party, which road has already been constructed by party of the second part, and which road has been built upon the terms and conditions hereafter set out, which terms and conditions had been agreed upon between the parties hereto orally,
"Now, therefore, in consideration of the premises and the mutual promises contained herein, it is agreed as follows:
"(1) The party of the first part hereby grants to the party of the second part the right to construct the road on its property situated in Land Lot 152 of the 17th District of Georgia, and adjoining on the west side of the property conveyed by party of the first part to party of the second part by virtue of an order of the Superior Court of Fulton County, Georgia, dated July 12, 1952, being Case No. 257565 entitled State Highway Department of Georgia v. The Atlanta Envelope Company et al. The boundaries of the property herein temporarily conveyed to party of the second part by party of the first part shall be the boundaries now established by party of the second part and the same shall not be altered or changed.
"(2) Party of the second part and the StaLe Highway Department are hereby granted the use of said property for a temporary road as long as the same may be needed, but not longer than the period from October 15, 1952 to May 31, 1953, free of charge.
"(3) Within fifteen (15) working days after the need of the use of the land for the road has expired, the party of the second part is to tear up the road and remove all materials of which the same is composed from first party's land, restore and regrade the land to its former condition, and refill and replace all broken ground over which said road was laid, as well as the land adjoining thereto, which as graded as a part of the road-all of said work to be done by party of the second part according to the direction of the landscape engineers of party of the first part, it being understood that the elevations of said land had been changed by party of the second part by making slight gradual gradings.
"(4) Party of the second part within fifteen (15) working days after the abandonment of the road will plant permanent Bermuda grass sprigs and seeds to cover the entire area used or made suitable for the road and the adjoining area running parallel with Northside Drive beginning at Bellemeade Road to the northeast corner of the building of Atlanta Envelope Company, using suitable foundation and fertilizer materials to insure the growth thereof.
"(5) Party of the second part is to remove within fifteen (15) working days from the abandonment of said road all debris and to replace all utility lines, gas pipes, sewer and water lines, etc., which may have been moved or damaged by reason of the construction or use of said land for the road purposes.
"(6) Party of the second part is to replace within fifteen (15) working days after the abandonment of the road within the property limits of the property of the party of the first part on the same side of the street, the water fire plug now standing on the west side of Northside Drive directly in front of the building of the party of the first part.
"(7) Party of the second part will indemnify party of the first part for any damage to the land and improvements of the property herein permitted to be used for the road purposes, and the land and improvements thereon belonging to party of she first part on the west side immediately adjoining the properly herein temporarily allowed to be used by party of the second part, and party of the second part also agrees to indemnify and hold harmless party of the first part against any and all claims for damages, injuries, compensation, etc., to person or property of any person whomsoever, and agrees to defend at its own expense in the name of and on behalf of party of the first part any suit against party of the first part alleging injury and seeking damages, or either, on account of or in any way arising out of the use of the road even if such suit be groundless, false or fraudulent; but the party of the second part shall have the right to make such investigations, negotiations and settlements of any claim or suit as may be deemed expedient by the party of the second part.
"Party of the second part shall compensate party of the first part for any loss suffered by it by reason of the interruption of its business or manufacturing.operation or any other loss suffered by it resulting from any damage to the property herein temporarily allowed to be used by party of the second part for the road or the land and improvements belonging to the party of the first part and immediately adjoining to the west the property herein allowed to be used by party of the second part.
"If any claim for damages or injuries has been asserted by anyone against party of the first part, or if any suit therefor shall be brought against party of the first part arising out of the use or maintenance of said road, then party of the first part shall promptly notify party of the second part in writing of such assertion or suit. Such notice shall be mailed to Frank R. Fling, Clerk, Commissioners of Roads and Revenue, Fourth Floor, Fulton County Court House Annex, Atlanta, Georgia, by registered mail, and if party of the second part fails to defend any such action, then party of the first part may defend the same party of the second part shall pay any judgment rendered against party of the first part and shall reimburse party of the first part for any and all expenses, including attorneys' fees.
"(8) In the event the said property of party of the first part is used by party of the second part after May 31, 1953, party of the second part shall pay to party of the first part the sum of three thousand ($3,000.00) Dollars as rental for the period from June 1, 1953 to November 30, 1953, or for any part of said period; for the period from December 1, 1953 to May 31, 1954, or for any part of said period, a rental of Four Thousand ($4,000.00) Dollars; for the period from June 1, 1954 to November 30, 1954, or for any part of said period, a rental of Five Thousand ($5,000.00) Dollars. The rental shall not be subject to proration, but shall be due for the entire respective periods.
"The rental shall be in addition to any other obligation and responsibility of party of the second part as in this agreement provided."
The plaintiff entered suit against the defendant, seeking to recover $3,000 for breach of contract. The material portions of the petition are:
Paragraph 1 alleges the matters concerning jurisdiction of court.
Paragraph 2 alleges: "Said defendant is indebted to your petitioner in the sum of Three Thousand ($3,000.00) Dollars by reason of the facts more fully hereinafter set forth."
Paragraph 3 alleges the fact of the parties having entered into the contract as above set forth, attaches the contract as an exhibit to the petition, and further specifically sets forth paragraph 8 of the contract, as follows: "In the event the said property of party of the first part is used by party of the second part after May 31, 1953, party of the second part shall pay to party of the first part the sum of Three Thousand ($3,000.00) Dollars as rental for the period from June 1, 1953 to November 30, 1953, or for any part of said period; . . ."
Subsequent paragraphs read as follows:
"4. Petitioner shows that the property referred to in the contract, hereto attached and marked 'Exhibit A', as the 'road' has been used by defendant after May 31, 1953, in that the defendant did not tear up the 'road' and remove all material from petitioner's land until on or about August 1, 1953.
"5. Petitioner shows that the property referred to in the contract, attached here to and marked 'Exhibit A', as the 'road' has been used by defendant after May 31, 1953, in that the defendant did not restore and regrade petitioner's land to its former condition until on or about September 1, 1953.
"6. Petitioner shows that the property referred to in the contract, attached hereto and marked 'Exhibit A', as the 'road' has been used by defendant after May 31, 1953, in that the defendant did' not refill and replace all broken ground over which said 'road' was laid or upon the land adjoining said 'road' until on or about September 1, 1953.
"7. Petitioner shows that the property referred to in the contract, attached hereto and marked 'Exhibit A', as the 'road' has been used by defendant after May 31, 1953, in that the defendant has not planted, at the time of the filing of this suit, permanent sprigs and seeds of Bermuda grass to cover the entire area used or made suitable for the 'road' and the adjoining area running parallel with Northside Drive beginning at Bellemeade Road and running to the northeast corner of the building of Atlanta Envelope Company.
"9. Petitioner shows that the property referred to in the contract, attached hereto and marked 'Exhibit A', as the 'road' has been used by defendant after May 31, 1953, in that the defendant allowed vehicles driven by various members of the general public to traverse said 'road' on June 1, 1953.
"10. Petitioner alleges that the contract, attached hereto and marked 'Exhibit A', constitutes a claim which arose by reason of the taking of private property by the said Fulton County for the benefit of the public and as an incident in the performance of an undertaking by said Fulton County authorized by statute."
Paragraph 11 alleges that a contract between the parties, attached to the petition, was properly recorded in the Minute Book of the Fulton County Commissioners. The prayers are for process, and judgment for $3,000. The defendant filed demurrers to the petition as follows: (1) That no new cause of action was set out against the defendant.
Other paragraphs of the demurrers read: "(2) Defendant demurs to paragraph 4 upon the ground that same sets forth a conclusion of the pleader, unsupported by the allegations of fact set forth in the petition; and upon the ground that the matters therein referred to do not constitute use of the road after May 31, 1953, so as to obligate defendant, under the terms of the contract attached to the petition.
"(3) Defendant demurs to paragraph 5 upon the ground that same sets forth a conclusion of the pleader, unsupported by the allegations of fact set forth in the petition; and upon the ground that the matters therein referred to do not constitute use of the road after May 31, 1953, so as to obligate defendant, under the terms of the contract attached to the petition.
"(4) Defendant demurs to paragraph 6 upon the ground that same sets forth a conclusion of the pleader, unsupported by the allegations of fact set forth in the petition; and upon the ground that the matters therein referred to do not constitute use of the road after May 31st, 1953, so as to obligate defendant, under the terms of the contract attached to the petition.
"(5) Defendant demurs to paragraph 7 upon the ground that same sets forth a conclusion of the pleader, unsupported by the allegations of fact set forth in the petition; and upon the ground that the matters therein referred to do not constitute use of the road after May 31st, 1953, so as to obligate defendant, under the terms of the contract attached to the petition.
"(6) Defendant demurs to paragraph 8 upon the ground that same sets forth a conclusion of the pleader, unsupported by the allegations of fact set forth in the petition; and upon the ground that the matters therein referred to do not constitute use of the road after May 31st, 1953, so as to obligate defendant, under the terms of the contract attached to the petition.
"(7) Defendant demurs to paragraph 9 upon the ground that same sets forth a conclusion of the pleader, unsupported by the allegations of fact set forth in the petition; and upon the ground that the matters therein referred to do not constitute use of the road after May 31st, 1953, so as to obligate defendant, under the terms of the contract attached to the petition."
The defendant filed a general denial.
In the court's order the general demurrers and the special demurrer to paragraph 9 of the petition were overruled. The court sustained the special demurrers to paragraphs 4, 5, 6, 7, and 8. The plaintiff filed no exceptions to the sustaining of the special demurrers. The defendant thereafter filed an amendment, which was allowed and filed and reads as follows: "Defendant barricaded the road referred to in par. 9 of plaintiff's petition on Monday June 1, 1953 at 3 PM and vehicles driven by members of the public did not thereafter traverse the same. Defendant had all of the day of June 1, 1953 to do so, as May 31, 1953 was Sunday."
The defendant filed an answer, generally denying every paragraph of the petition. The case went to trial and the court directed a verdict for the plaintiff. A motion for a mistrial was overruled. The defendant assigns error here on the overruling of its general demurrer and on the denial of the motion for new trial.
1. The defendant contends that, under the allegations of the petition, the suit was for a penalty and not a suit for rent under the terms of the contract. In this connection it must be kept in mind that, if the defendant went beyond the term of use of the property in question as provided by the contract the $3,000 could not be prorated under the terms of the contract. The defendant contends that in ruling on the demurrers the court should have, as a matter of law, construed the contract as a contract which provides for a penalty. We construe the contract as a specific contract for rental for a specified amount. In support of this contention, our attention is called by counsel for the defendant to Code 20-1403. We do not think the provisions of that sections sustain its position. That Code section specifically refers to penalties in bonds. It is not applicable under a rental contract as here involved. Our attention is called in this connection to Miazza v. Western Union Telegraph Co.,
2. We come next to consider whether or not the defendant entered upon the use of the property in question here for a period beginning June 1, 1953. We might state in this connection that, while the court sustained certain special demurrers to paragraphs 4, 5, 6, 7, and 8, of the petition, these allegations were based upon specific agreements in the contract; and since the contract was attached as an exhibit, and therefore is a part of the petition, the stricken paragraphs were unnecessary. This still left the contract as part of the petition, and evidence was introduced without objection on stipulations in the agreement between the plaintiff and the defendant. While there is considerable argument as to whether the contract is enforceable, there is argument pro and con as to whether or not the last day of the contract was on Sunday and, therefore, the contract did not terminate until June 1, 1953. In our opinion the plaintiff proved a breach of the contract in other ways, as the evidence reveals, such as, the defendant left the land in question open to the public until 3 or 4 p.m. on June 1, 1953; that the property was barricaded at that time on only one end of it to prevent the public from passing through, but the other end was left open to the extent that people could and did enter the end not barricaded, and people could and did park on the lot in question far beyond the period stipulated in the contract; and further, to the effect that the defendant was obligated to clear off the pavement on the detour, to grade and plant grass thereon, which was not done according to the terms of the contract. We might in this connection refer to the question as to whether or not the defendant had the right to use the land in question on June 1, 1953, because May 31, 1953, was a Sunday. We think that this question is settled adversely to the contentions of the defendant by the decision of Rowell v. Harrell Realty Co.,
The court did not err in denying the motion for a new trial.
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