First Capital Institutional Real Estate, Ltd. — 1 v. Pennington

368 S.E.2d 165, 186 Ga. App. 617, 1988 Ga. App. LEXIS 448

• Court: Court of Appeals of Georgia
• Decided: March 18, 1988
• Docket: 75231
• Status: Published

Opinions

Carley, Judge.

After appellees vacated the premises which they had previously leased from appellant, appellant filed suit seeking rentals which had accrued under the terms of the lease, but which had not been paid. The lease contained a provision requiring the payment of double rent in the event that the appellees remained in possession of the premises beyond the original lease period without entering into a new lease. Appellees retained possession beyond the original lease period, but during their extended possession of the property failed to pay the increased rent called for in the lease. On cross-motions for summary judgment, the trial court held the double-rent provision to be a penalty, and entered summary judgment for appellees. Appellant appeals from the trial court’s judgment entered on the motions for summary judgment.

The rationale of our holding in Fulton County v. Atlanta Envelope Co., 90 Ga. App. 623 (83 SE2d 866) (1954) controls the present case. As in Atlanta Envelope Co., the plaintiff here does not seek damages as a result of the breach of the contract. Rather, the plaintiffs in both cases simply alleged that, under the plain and express terms of the contract, the lessee was obligated to pay a specified sum as rental during the applicable period. As this court stated in Atlanta Envelope Co., “[t]he distinction between [Miazza v. Western Union Telegraph Co., 50 Ga. App. 521 (178 SE 764) (1934) and Dart v. Southwestern &c. Assn., 99 Ga. 794 (27 SE 171) (1896)] and the instant case is that while, in the two cases cited and in the instant case, breaches of contract are involved, in the cited cases damages were sought to be recovered for the breach of the contract, while in the instant case the action is for the enforcement of the contract according to its terms.” (Emphasis supplied.) Fulton County v. Atlanta Envelope Co., supra, 630.

In the absence of a violation of public policy or law, parties to contracts are free to contract on whatever terms they choose. “A contract cannot be said to be contrary to public policy unless the General Assembly has declared it to be so, or unléss the consideration of the contract is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of law. [Cits.]” Hall v. Gardens Svcs., 174 Ga. App. 856, 857 (332 SE2d 3) (1985). In this case, the contract cannot be said to be contrary to public policy.

Any attempt to characterize the double rent provision as a penalty, based upon the fact that the terms of the lease contract provided that if the lessee should hold over and thereby become liable for the increased rental during the period of continued occupancy, the lessees would become tenants at sufferance, is unfounded. In Tedford v. Roswell Village, 173 Ga. App. 780, 781 (328 SE2d 403) (1985), this court approved a jury verdict in favor of a landlord for “increased rental authorized by the lease” against a tenant who was denominated as a tenant at sufferance during the period of “increased rental.”

Quite simply, this is not an action wherein the issue is whether the amount sought constitutes “liquidated damages” or a “penalty,” but rather it is a suit for enforcement of the contract according to its terms. The trial court erred in denying appellant’s motion for summary judgment. Accordingly, we reverse.

Judgment reversed.

Birdsong, C. J., McMurray, P. J., Sognier and Beasley, JJ., concur. Been, P. J., Banke, P. J., Pope and Ben-ham, JJ., concur in part and dissent in part.