Black v. Milner Hotels Inc. , 194 Ga. 828 ( 1942 )

Cause of action alleged, for specific performance, and for recovery of damages.

No. 14266. NOVEMBER 10, 1942. On July 26, 1941, Milner Hotels Incorporated filed in Fulton superior court a petition against William Harmon Black, alleging in substance the following: The defendant is a resident of New York, but is sojourning in Fulton County, Georgia. Petitioner and the defendant on July 11, 1941, entered into a lease contract covering real estate owned by defendant, known as 73-75 Pryor Street N.E., in the City of Atlanta, Georgia, copy of which contract is attached to the petition. Said contract is in full force.

On July 20, 1941, the date mentioned in said lease for entry, petitioner offered through its agents to enter upon the performance of said lease and fully comply with its terms, having theretofore tendered a check in full payment of a month's rent in advance. However, before the date for entry the defendant had repudiated said lease and refused to carry out its terms and to allow entry thereunder. By the defendant's breach of said contract, damages are accruing to petitioner from month to month, and said lease is a profitable lease to petitioner. This petition is brought for specific performance of said lease in equity under the terms of the statute, and damages recoverable by law for the breach of said contract would not be adequate compensation for its non-performance by the defendant. Petitioner is suffering irreparable damages by the refusal of the defendant to carry out the terms of said lease. It prayed, for decree of specific performance; for judgment in damages that may accrue from the date provided for entry under said lease until a decree for performance can be granted, in the sum of $200 per month or other sum that may be equitable and just; and for general relief.

The copy of lease attached to the petition showed that the described premises were leased to the plaintiff by the defendant for a term of one year beginning July 20, 1941, for $425 per month, payable in advance on the 10th of each month, at 160 Central Park South, New York, with an option to the plaintiff to renew the lease for four years at a rental of $450 per month.

On November 25, 1941, the defendant filed a demurrer on the grounds, that the petition fails to set forth sufficient facts to constitute a good and valid cause of action either at law or in equity, and it shows on its face that the plaintiff does not have a good and valid cause of action, either in law or in equity.

On December 13, 1941, the plaintiff offered an amendment to the petition, which was allowed subject to objection and demurrer. In this amendment the original petition was denominated as "count one," and certain paragraphs were added. The amendment also added a new count designated as "count two." The added paragraphs were as follows:

"1. Petitioner alleges that the defendant on July 18, 1941, in Detroit, Michigan, repudiated said lease and refused to be bound by its terms.

"2. Notwithstanding such repudiation, petitioner tendered a check for the first month's rent to defendant, in the sum of $425, said tender having been made to defendant on or about July 19, 1941, which check was returned by defendant to plaintiff about said date, and the lease was again repudiated by the defendant.

"3. Petitioner through its authorized agent, one George Burt, on July 20, and July 21, 1941, in Atlanta, in 73 Pryor Street N.E., offered to take over the premises and carry out the terms of the lease as provided therein.

"4. Petitioner alleges that the irreparable damages being suffered grow out of the fact that said hotel lease had a reasonable net profit, through operation of the hotel by petitioner, of $500 per month, which profit because of the breach is being lost to petitioner, and said lease had a market value of about $550 per month, thus making a net loss, based on the market value of the lease, of over $100 per month; that damages allowable for the breach would not therefore be adequate for the loss sustained.

"Wherefore petitioner asks that this be allowed as an amendment to its original petition, the same to be considered as count 1, being the count in which specific performance is asked."

"Count two," as set out in the amendment, was as follows:

"1. Petitioner names as the defendant William Harmon Black, and says that he is a resident of the City of New York, State of New York, and is subject to the jurisdiction of this court.

"2. Petitioner shows that petitioner and the defendant, on July 11, 1941, entered into a lease contract covering real estate owned by defendant known as 73-75 Pryor Street N.E., in the City of Atlanta, said State and county, a copy of which is attached to its original petition, marked Exhibit `A' and made a part hereof. . .

"3. Petitioner alleges that the defendant on or about July 18, 1941, repudiated the said lease and refused to be bound by its terms.

"4. Petitioner herein sues because of the breach of said contract by defendant, and asks for damages based on the difference between the contract price as fixed by the lease, and the market value of such lease, and says that the market value is at least a rental value of $550 per month; that the contract price is $425 per month for the first year and $450 for the next four years. So that its damages for the entire period are $6300, which would be subject to being reduced to its present value.

"Wherefore petitioner prays that the foregoing be allowed as an amendment and designated as count two."

After the allowance of the amendment, the defendant filed the following demurrer:

"And now comes" the defendant "and demurs to the amendment in said case allowed on the 13th day of January, 1942, and for grounds of said demurrer says:

"1. That the said amendment seeks to set up a claim against this defendant for a personal judgment, when this court does not have jurisdiction of the person of the defendant in this case.

"2. That said amendment seeks to set up a cause of action on which personal judgment is sought, when the only jurisdiction of this defendant which the court has, if any at all, is in an in rem proceeding specifically provided by law.

"3. This defendant renews each, all, and every [one] of the demurrers heretofore filed in this case, and insists upon the same.

"4. This defendant demurs generally to the said petition as now amended, and moves to strike the same, on the ground that said petition as amended fails to set forth any cause of action against this defendant, either in law or in equity.

"5. This defendant demurs to said petition as amended, and moves to strike the same on the ground that this court has no jurisdiction of this defendant, he being a non-resident of the State of Georgia and no personal service having ever been made on him, and says that if this court should hold that it has jurisdiction of the defendant in this case, that it would be violative of his rights under the constitution of the United States, . . and that any law of the State of Georgia authorizing this procedure against this defendant is unconstitutional and violative of his rights as a citizen of the United States.

"Wherefore this defendant prays that these his grounds of demurrer be inquired of by the court, sustained, and said petition as amended dismissed."

The court overruled all the grounds of demurrer, and the defendant excepted. 1. Want of jurisdiction of the person may be waived so far as the rights of the parties are concerned; and where a defendant appears and pleads to the merits without excepting to the jurisdiction of the court, he thereby waives any objection to the jurisdiction of his person. The filing of a demurrer without questioning the jurisdiction is pleading to the merits, within the rule. Code, § 81-503; Lyons v. PlantersLoan Savings Bank, 86 Ga. 485 (12 S.E. 882, 12 L.R.A. 155); Ray v. Hicks, 146 Ga. 685 (2) (92 S.E. 48); Berry v. Watkins, 158 Ga. 304 (123 S.E. 102); Hudgins ContractingCo. v. Redmond, 178 Ga. 317 (173 S.E. 135). The foregoing principles as to waiver may apply, not only to actions at law, but also to equity cases, including actions for specific performance. Adams v. Lamar, 8 Ga. 83; Waters v.Waters, 167 Ga. 389 (6) (145 S.E. 460). Accordingly, in the instant case the filing of the first demurrer gave to the court jurisdiction of the defendant's person, and the protestations made for the first time in the second demurrer came too late.

2. "Where a contract for the lease of real estate is in writing, signed by both parties, is certain and fair, is for an adequate consideration, and capable of being performed, a court of equity, as a matter of course, will decree its specific performance." F. W. Grand Stores v. Eiseman, 160 Ga. 321 (7) (127 S.E. 872).

3. Where a petition based on such a lease contract contains two counts, in the first of which there is a prayer for specific performance, and in the second there is a prayer for damages, the second count does not render the petition demurrable; and an original petition seeking specific performance only may be amended by adding a second count for recovery of damages. Armor v. Stubbs, 150 Ga. 520 (104 S.E. 500); Loewus v. Eskridge Downing Inc., 175 Ga. 456, 460 (165 S.E. 576).

4. The petition having sufficiently alleged repudiation of the contract by the defendant, no allegation of continuing tender was necessary. Turman v. Smarr, 145 Ga. 312 (2) (89 S.E. 214);Fraser v. Jarrett, 153 Ga. 441 (3) (112 S.E. 487);Chastain v. Platt, 166 Ga. 307 (3) (143 S.E. 378).

5. The following ground of demurrer: "This defendant demurs to said petition as amended, and moves to strike the same, on the ground that this court has no jurisdiction of this defendant, he being a non-resident of the State of Georgia and no personal service having ever been made on him; and says that if this court should hold that it has jurisdiction of the defendant in this case, that it would be violative of his rights under the constitution of the United States, . . and that any law of the State of Georgia authorizing this procedure against this defendant is unconstitutional and violative of his rights as a citizen of the United States," did not bring in question the constitutionality of any law of this State, no particular statute being stated as violating the Federal constitution.

6. Under the ruling stated above, as applied to the pleadings, each count of the petition stated a cause of action, the first for specific performance and the second for damages. The judgment overruling the general grounds of the first demurrer and all grounds of the second demurrer was not erroneous, as contended.

Judgment affirmed. All the Justices concur.