Taylor v. Dunaway , 79 Ga. App. 754 ( 1949 )

The trial court did not err in sustaining the general demurrer to the petition and in dismissing the action.

DECIDED JULY 8, 1949. REHEARING DENIED JULY 27, 1949. Boyd E. Taylor instituted this suit against John A. Dunaway, J. L. Riley, and James C. Howard Jr., as members of a law partnership in Fulton County, to recover an alleged debt of $2400 plus interest. The petition alleged substantially the following: On or about April 5 or 6, 1946, the defendant John A. Dunaway came to the petitioner and proposed that the petitioner lease to said defendants certain office space. On April 6, 1946, the petitioner and the defendants executed an option agreement whereby the defendants were given an option to lease said office space from the petitioner at the rate of $150 per month for a period beginning May 1, 1946, and expiring March 14, 1949, said option to expire at midnight April 13, 1946; and included in the option contract was the following agreement: "The offices shall be finished according to plans furnished by lessees with ceiling height walls made of plaster or sheet rock, painted a color to be selected by lessees, linoleum square tile floors, modern fluorescent lighting and heat and light to be furnished by lessor. The raised floor between the old Woodrow Wilson office over the stairway and the center office is to be removed and the floor level is to be the same throughout the suite. A lavatory shall be installed, provided it does not require installation of piping at a cost of more than $200. Otherwise, the lease contract shall be on the usual form approved by the Atlanta Real Estate Board." On or about April 13, 1946, the petitioner and the defendants executed a standard business lease contract whereby the defendants agreed to lease said office space from the petitioner at the rental price of $150 per month beginning May 1, 1946, and expiring October 31, 1947, with an option of renewing said lease at the expiration thereof upon 30 days' written notice to lessor for the period of time from such expiration up to midnight March 14, 1949. Among the provisions of said lease contract were: "4. Lessee accepts premises in their present condition and as suited for the use intended by lessee. Lessor shall not be required to make any repairs or improvements to premises, except structural repairs necessary for safety and tenantability. . . 10. Lessee may without the prior written consent of lessor endorse hereon; assign this lease or any interest thereunder, or sublet premises or any part thereof, or permit the use of premises by any party other than lessee. . . Special Stipulations. In so far as the following special stipulations conflict with any of the foregoing provisions, the following shall control: . . The offices shall be finished bylessor according to plans of lessees with ceiling height wallsmade of plaster or sheet rock. . . " (Italics ours.) By virtue of the provisions of the lease contract, the petitioner undertook to supervise and direct the remodeling of the space leased to the defendants, and by the terms of said contract the defendants were to pay to the petitioner the actual cost of remodeling. After said lease agreement was executed, the defendants informed the petitioner that the defendants had arranged for the petitioner to procure a loan from the Bank of Georgia for the cost of remodeling. The petitioner executed a note to the Bank of Georgia and took the proceeds of said loan in the sum of $2400. The petitioner immediately went to John A. Dunaway, defendant, and protested that the funds for remodeling had not been furnished by the defendants. The defendant Dunaway stated to the petitioner that the defendants were unable to finance the entire remodeling, but would repay the $2400 in cash or would return the space to the petitioner in order that the $2400 could be recouped by leasing the space in its remodeled condition at a profit. Sometime between April 17, 1946, date of loan from the bank, and May 2, 1946, the defendant Dunaway came to the petitioner and stated that the defendants desired to assume the direction of the remodeling. On May 2, 1946, the petitioner and the defendants executed a written agreement which stated: "In consideration of the sum of twenty-four hundred ($2400) dollars, paid by B. E. Taylor to Dunaway, Riley and Howard, a partnership composed of John A. Dunaway, J. L. Riley James C. Howard Jr., the receipt of which is hereby acknowledged, the lease agreement entered into between parties on April 13, 1946, is hereby modified and amended as follows: 1. The remodeling provided for in said lease agreement is hereby assumed by lessees to be done in a reasonably workman-like manner and according to the plan, a copy of which is hereto attached." On May 4, 1946, the petitioner delivered to the defendants a check for $2400. The petitioner has substantially complied with all the foregoing agreements. After May 4, 1946, the defendants proceeded to remodel the space leased to them, and went into possession of the same on June 15, 1946. The defendants remained in possession until approximately January 31, 1947, at which time the defendants moved their offices elsewhere. During February, 1947, the defendants subleased the office space to two subtenants for an aggregate gross rental of $320 per year. The defendants exercised their option as provided for in the special stipulation clause of the lease contract, and renewed their lease. Although the petitioner has continually requested them to do so, the defendants have refused to vacate the premises of their subtenants or to release the premises to the petitioner, so that the petitioner could recover the sum advanced to the defendants. The defendants have refused to repay the $2400, for which the petitioner is suing.

A general demurrer to the petition was filed by the defendants. To the sustaining of the demurrer the petitioner excepts. The plaintiff contends that the defendants are indebted to him in the sum of $2400 by reason of the following facts: that the plaintiff leased to the defendants, at a rental of $150 per month, certain office space as it stood, unaltered and not remodeled; that the plaintiff agreed to undertake to supervise and arrange for the remodeling for the defendants, this to be paid for by the defendants; that the defendants told the plaintiff to get the money for the alterations from the Bank of Georgia; that the plaintiff went to the bank, and learned that the defendants had arranged for the plaintiff to borrow $2400; that the plaintiff borrowed said sum; that later the defendants asked the plaintiff to advance the $2400 to them, and allow the defendants to supervise the remodeling; that the plaintiff agreed and advanced said sum to the defendants after the defendants agreed to repay the money to the plaintiff; and that the defendants failed to repay the money.

The plaintiff takes the position that, under the terms of the lease contract, the defendants were obligated to pay for the remodeling of the office space, and that the plaintiff's only agreement under the lease was to supervise and direct such alteration. The plaintiff relies on the printed subject-matter in paragraph 4 of the lease — which states that the "lessee accepts premises in their present condition . . . Lessor shall not be required to make any repairs or improvement to the premises, except structural repairs necessary for safety and tenantability" — as being an unconditional acceptance of the premises by the defendants in their present condition, plus an agreement on the part of the defendants that the plaintiff shall not be required to repair and improve them. The plaintiff further contends that, if from the written instruments, including the lease contract, it is not clearly specified who is to pay for such repairs, and the writings are found to be ambiguous, then parol evidence should be admitted to ascertain the true intention of the parties. The plaintiff also contends that the provision in the special stipulation clause, that "The offices shall be finished by the lessor according to the plan of the lessee," does not mean that the plaintiff is to pay for the remodeling, but means that the plaintiff agrees merely to supervise and direct the work of remodeling. At the very least the plaintiff contends that this stipulation is vague and ambiguous and requires parol evidence to prove the actual intention of the parties. We are of the opinion that the foregoing contentions of the plaintiff are untenable. While it is true that the option agreement failed to state whether the plaintiff or the defendants were to pay for the improvement therein stipulated, the lease contract clearly removed any uncertainty as to who would be liable for the cost of the alterations. In the special stipulation paragraph of the lease there was the following typed provision, "The offices shall be finished by lessor according to plans of lessees." Not only is it the general rule of construction of such instruments to the effect that typed provisions will prevail over printed matter when they conflict (Caddick Milling Co. v. MoultrieGrocery Co., 22 Ga. App. 524, 96 S.E. 583), but there is also a provision in the introduction to the special stipulation paragraph that reads: "In so far as the following special stipulations conflict with any of the foregoing provisions, the following shall control." Since there is clearly a conflict between paragraph 4 of the lease and a provision in the special stipulation clause, the latter will control, as expressly stated in the introduction of the special stipulation paragraph. Therefore, the lease on its face clearly negatives the allegation in the petition, "That under said lease agreement, Exhibit B, defendants were to pay to petitioner the actual cost of said remodeling."

Even if it could possibly be said that the above original stipulation is ambiguous or doubtful, the supplemental agreement, whereby "The remodeling provided for in said lease agreement is assumed by the lessees" in consideration of the payment of $2400, conclusively shows that the parties construed the lease as obligating the lessors to pay for the remodeling. See Asa G.Candler Inc. v. Georgia Theatre Co., 148 Ga. 188 (96 S.E. 226). The allegation that the lessee promised orally to repay the $2400 is directly contrary to the undertakings in the written agreements and, in the absence of allegations of accident, fraud, mistake, or duress, cannot affect the solemn obligations contained in the writings.

The trial court did not err in sustaining the general demurrer and in dismissing the action.

Judgment affirmed. Sutton, C. J. and Worrill, J., concur.