
    13151.
    Chotas & Gust v. Turman & Co.
   Stephens, J.

1. Where it is agreed between a landlord and his renting agent that the agent shall have the right to collect the rents accruing under a certain lease contract for and during the full term of the lease, and, in the event of the landlord’s selling the property or withdrawing it from the agent and depriving the latter of the right to collect the rents, that the agent shall be entitled to be paid, as liquidated damages from the landlord, an amount equivalent to an agreed commission upon the stipulated amount as rent for the remainder of the term of the lease, a rescission of the lease contract by agreement between the landlord and the tenant, when done by the landlord in good faith and as a result' of a mutual mistake of all the parties, including the renting agent who negotiated the contract as agent for the landlord, as to the suitability of the rented premises for the uses intended, and not as a subterfuge devised by the landlord to avoid the appearance of a violation by him of his contract with the agent, does not amount to a withdrawal of the property from the agent by the landlord; and such act of the landlord, therefore, is not a violation of the latter’s contract with the agent.

2. In a suit by a renting agent against the landlord to recover damages for an alleged breach by the landlord in withdrawing from the agent the right to collect the rents from the tenant, a plea by the defendant set up a'good defense and was improperly stricken where it alleged that the defendant and the tenant had by mutual consent cancelled and rescinded the contract between themselves for the reason that they, together with the plaintiff who had acted as the defendant’s agent in making the contract, had acted under mutual mistake of fact in believing that certain posts and pillars erected in a building on the rented premises could be removed so as to render the premises suitable and desirable as a pool-room, as was intended by all the contracting parties, when as a matter of fact, as it afterwards appeared, the posts and pillars could not be removed, because the building inspector of the city would not allow such removal, upon the ground that their removal would render the building unsafe.

Decided September 23, 1922.

Certiorari; from Fulton superior court—-Judge Pendleton. October 12, 1921.

Howard, Stevens, for plaintiffs in error.

Hewlett & Dennis, contra.

3. The defendant’s plea having been stricken and a judgment rendered in behalf of the plaintiff, the judge of the superior court erred in overruling the certiorari.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.  