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47 Ga. App. 601

Sinclair Refining Co. v. Davis

Court of Appeals of Georgia

Decided September 23, 1933

Court of Appeals of Georgia · decided 1933-09-23

Key passage — most relied on by later courts

“... it is clearly within the contemplation of the parties to the contract that the lessee shall, during the term of the lease, operate upon the premises a service station for the sale of gasoline...”

quoted by 1 later decision, including 134 Ga. App. 834 - Kroger Co. v. Bonny Corp.

“so substantial and fundamental as to defeat the object of the lease”

quoted by 1 later decision, including Foundation Development Corp. v. Loehmann's, Inc.

Good law ✅— No negative treatment on recordhow we know

Decided 1933-09-23

How this case has been cited

Cited by 27 later decisions — most recently June 2002 · most notably 45 Cal. App. 2d 141 - Cousins Investment Co. v. Hastings Clothing Co. (1941), Mercury Investment Co. v. F.W. Woolworth Co. (1985)

25 state decisions — followed in 13 states

5019331940195019601970198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Stephens, J.

¶11. A breach of a contract as to a matter so substantial and fundamental as to defeat the object of the contract may authorize a rescission of the contract by the opposite party. 13 C. J. 613; 6 R. C. L. 930.

¶22. Where premises equipped for use as a gasoline and oil service station are leased for a term, and the rent reserved consists of a designated sum of money per gallon on all gasoline which the lessee shall sell upon the premises during the term of the lease, the rent not to be less than $10 a month, it is clearly within the contemplation of the parties to the contract that the lessee shall, during the term of the lease, operate upon the premises a service station for the sale of gasoline; and where the lessee, after taking possession of the premises under the lease, fails to operate thereon a service station for the sale of gasoline, although he may continue to occupy the premises, this amounts to a breach of the lease in a matter so substantial and fundamental as to defeat the object of the lease, and the lessor may rescind. The lessor may treat the lessee, for the period of the occupancy of the premises, as a tenant at sufferance or at will, and may collect, as rent for the period of time actually occupied by the lessee, a sum of money equal to the rental value of the premises.

¶33. The petition in this case, in which the lessor under such a lease sought to recover from the lessee the rental value of the premises for the time occupied, set out a cause of action, and the demurrer was properly overruled.

¶4Judgment affirmed.

Guerry, J., concurs. Jenkins, P. J., absent on account of illness. Sutton, J., disqualified.
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