Armour & Co. v. Block

Lumpkin, J. (After stating the foregoing facts.) 1. It is unnecessary to discuss the general rules of law touching trade fixtures and the right of a tenant to remove them during his [298] term. The allegations of the petition are to be taken as true on demurrer. The written lease is attached thereto as an exhibit. By its terms it was agreed that “any fixtures, additions, or improvements made, added to or installed in said demised premises by lessee during its occupancy thereof, shall be and remain its property, and it shall have the right to remove same at any time.” The petition alleged that during the course of the construction of the building, and before its completion and acceptance and the occupancy thereof by the lessee, the cooling-room, smoke-room, elevator, refrigerator, ice-boxes and other fixtures, “not being trade fixtures but attached to and forming a part of the realty, were constructed as part of the said demised premises,” and that none of •them were constructed, installed, or added to the building since the date of the occupancy of the lessee or its successor, the defendant. Under the terms of this written lease and the allegations of the petition, it can not be declared on general demurrer that the defendant had the right to remove from the premises the things mentioned, and that the plaintiff had no cause of action against it, if the defendant was undertaking to make such removal. 2. It was contended that, after the action of the court in allowing a bond to be given and permitting the defendant to proceed with the removal of the fixtures, the plaintiff’s recourse was to seek to obtain a judgment for damages against the principal and surety on the bond, and that there was no specific allegation as to the damage suffered and the amount thereof, or prayer for judgment for the damages sustained. After the giving of such a bond and the removal of the fixtures in controversy, if damages were established at the trial, they could be recovered under the prayer for general relief. Ivey v. Georgia So. & Fla. R. Co., 84 Ga. 536 (11 S. E. 128); Everett v. Tabor, 127 Ga. 103 (56 S. E. 123, 119 Am. St. E. 324). Judgment affirmed. All the Justices concur, except Beck, J., absent.