Reid v. Fain

Evans, P. J. (After stating the facts.) 1. It was not necessary for the plaintiff to allege that the de [510] fendant was able to procure a retail liquor license for the conduct of a retail liquor business.in the rented storeroom. The verbiage of the contract demonstrates, and the occupation by the tenant of the storeroom for several months before abandoning his lease illustrates that the clause in the lease relating to the procurement of a retail liquor license by the defendant was not intended as a condition ju’ecedent, but as a condition subsequent or defeasance, which would terminate the lease. The contractual obligation of the tenant to secure a retail liquor license implies a reasonable effort in good faith to get such a license. The lease'is not to be defeated by his non-action, or colorable attempt in that direction. The lease became operative from the time it purported to go into effect, and the tenant had a present interest in the same, but the lease was subject to shorter terminátion if the tenant after performing an act should fail to accomplish a particular result. The rule of pleading is that “when the interest or estate passes presently and vests in the grantee and is to be defeated by matter ex post facto, or condition subsequent to the condition to be performed in the affirmative or negative, or to be performed by the defendant or any other, then the plaintiff may count generally without showing any performance; this shall be pleaded by him who is to take advantage of it.” 5 Bacon’s Abr. 337; Murphy v. Lawrence 2 Ga. 257. 2. Where a lessee repudiates his lease and abandons the rented premises, the lessor majr sue for a breach of the contract before the expiration of the term, and the damages are to be measured by the difference between the rent stipulated in the lease and the actual rental value for the balance of the term. Minn. Baseball Co. v. City Bank, 74 Minn. 98 (76 N. W. 1024). In his ruling on the demurrer the court held that the enactment of the prohibition law interdicting the sale of spirituous and intoxicating liquor in the State after January 1, 1908, restricted and limited the term of the lease to that time. No cross-bill of exceptions was sued out by the plaintiff, and this ruling of the court is res adjudicate as to that point. The court' directed a verdict for the plaintiff for $659.50, the stipulated rent for the months intervening September 1, 1907, and January 1, 1908, with interest thereon. The defendant admitted in open court.that the plaintiff was entitled to recover this sum, unless he sustained by a preponderance of evidence his plea of avoidance of the contract. Taking all the evidence submitted [511] on this subject, the only verdict which could properly be rendered was that directed by the court. 3. The defendant offered in evidence certain written assignments of the lease, viz.: one by him to Fite, dated October 1, 1906, one by Fite to Crumpton, dated June 7, 1907; and an endorsement by the original landlord, Jones, consenting to these transfers, dated June 7, 1907. These writings were rejected from evidence, and error is assigned on their exclusion. The defendant has no just cause for complaint of the exclusion of this evidence. The ordinance of the City of Atlanta required each applicant for a liquor license to submit proof that he is the true owner of the premises, or holds in his own name and right a lease on the building wherein he proposes to conduct the liquor business, before any license shall be granted. The defendant’s application for license was made after his assignment of his lease. ' By his own voluntary act in assigning his lease, he put it out of his power to comply with the municipal regulation for obtaining a license in his own name. It is true that the ordinance was passed intervening the defendant’s transfer to Fite and his application for license. But the rejected evidence shows that the landlord assented to the transfer after the passage of the ordinance and before the defendant’s application for a license was refused by the council. Judgment affirmed. All the Justices concur.