Tift v. McCaskill et al.; et vice versa

Supreme Court of Georgia1930-10-03No. Nos. 7538, 7539

171 Ga. 289

Summary · law.co

Holding. The lease was not unilateral merely because it granted the lessee a cancellation option, and the trial court properly admitted evidence of the preliminary contract to establish the consideration for the lease. The judgment refusing the temporary injunction was affirmed.

A property owner leased gasoline and oil filling stations to defendants under a five-year lease with a monthly rental rate. The lease contained a provision allowing the lessee to cancel by providing thirty days' written notice. The property owner sought to enjoin the defendants from using the property, arguing the lease was unilateral and constituted merely a tenancy at will that had been terminated by notice to vacate. The trial court refused to grant a temporary injunction. On appeal, the main issues were whether the lease was unilateral and whether the trial court properly admitted evidence of a preliminary contract between the parties.

The court held that the lease was not rendered unilateral by the lessee's cancellation option. The lessee had entered into possession, made payments, and the lease's consideration derived from more than mutual promises alone—it was supported in part by consideration exchanged under a preliminary contract that the parties had executed. Evidence of this preliminary contract was admissible to establish the actual consideration supporting the lease, even though the preliminary contract was not mentioned in the final lease or bill of sale.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a lease with a unilateral cancellation right is rendered unilateral in character
Whether a preliminary contract is admissible to establish consideration for a subsequent lease when the preliminary contract is not referenced in the final documents
Whether a lease constitutes a tenancy at will when signed for a specified five-year term with cancellation only by lessee option

Procedural posture

The plaintiff-lessor appealed an interlocutory judgment denying a temporary injunction sought against the defendants-lessees.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Atkinson, J.

The main bill of exceptions assigns error on a judgment rendered at an interlocutory hearing, refusing a temporary injunction. The action was instituted by a lessor of certain gasoline and oil filling-stations and the realty on which they were situated, seeking to enjoin the defendants, claiming under the lease, from further use of the property, upon several grounds, one of which was that the contract of lease was unilateral and constituted only a tenancy at will, which had been terminated by the lessor giving the defendants notice to vacate. The contract was signed by the lessor and lessee. The specified term was for five years at stated monthly rental, and the lessee was “given the right and option, however, to cancel this lease contract upon giving the said lessor a thirty-day written notice.” The lease was executed to carry out in part a preliminary contract signed by both parties for lease of the property and sale of other property for a consideration of $5000, five hundred dollars of which was paid at the time of the preliminary contract and the balance at the time of the execution of the lease and a separate bill of sale of the other property. The bill of sale purported to be based on a consideration of $5000, and did not mention the preliminary contract or the lease. The lease did not mention the preliminary contract or the $5000. Held:

Nos. 7538, 7539.

October 3, 1930.

1. The preliminary contract was admissible to show that the consideration expressed in part entered into the consideration for the lease, and was properly admitted over the objection that it was merged in the subsequent lease and bill of sale.

2. The lessee entered into possession of the property and made payments of the consideration. The lease contract did not depend for its consideration upon mutual promises alone. In the circumstances the contract was not rendered unilateral by the provision therein giving the lessee the right to cancel at his option by giving the lessor 30 days written notice.

3. In the brief of the attorneys for plaintiff in error it is stated that the only issues involved are (1) whether the lease contracts are unilateral, and (2) whether the court erred in overruling the objection to the admission of the preliminary contract. These questions are sufficiently dealt with in the preceding note; and all other questions made by the assignments of error in the main bill of exceptions will be treated as abandoned.

4. The cross-bill of exceptions is typical, following the statute as to the manner of bringing cross-bills of exception to the Supreme Court, but is insufficient as a main bill of exceptions and can not be so regarded by the Supreme Court, although the exception is one that might appropriately have been made in a main bill of exceptions. In the circumstances the case falls within the general rule that where the judgment of a trial court is affirmed on the main bill of exceptions the cross-bill of exceptions will be dismissed.

Judgment affirmed on the main bill of exceptions.

Gross-bill of exceptions dismissed. All the Justices concur.

Smith & Ferguson and Fulwood & Forrester, for plaintiff.

C. A. Christian and Steve F. Mitchell, for defendants.