
    8254.
    FERRIS, trustee, v. COLLIER ESTATE.
    On the trial of an action to recover money deposited by a lessee with a lessor in lieu of a bond for the faithful' performance of the lessee’s obligation to pay rent monthly in advance during the term of the contract, a nonsuit was properly awarded, where the evidence failed to sustain the allegation of the plaintiff’s petition as to compliance with this part of the contract.
    Decided June 7, 1917.
    Action for money had and received; from Fulton superior court —Judge Ellis. March 15, 1916.
    
      Moore & Pomeroy, W. D. Pilis Jr., for plaintiff.
    
      G. T. & L. G. Hopkins, for defendant.
   Broyles, P. J.

This was a suit by a trustee in bankruptcy against the Collier Estate (a corporation), to recover money which his bankrupt had deposited with the defendant in' lieu of a bond for the faithful performance of a contract for a five-year lease of the Aragon Hotel of Atlanta, Georgia, beginning September 1, 1910, in which it was provided, among other things, that, in addition to the cash deposit, the rent was to be paid in advance, in monthly installments, on the first day of each month during the term-of the contract, and that the lease should be ipso facto terminated if proceedings in bankruptcy were instituted against the lessees. The undisputed evidence showed that such proceedings were instituted against the lessees on May 27, 1914, by outside parties. The petition alleged that the lessees, in addition to the sum deposited in lieu of a bond, had paid “all of the rentals for said premises until and including the month of May, 1914.” There was no oral testimony, and the documentary evidence introduced b.y the plaintiff failed to sustain the above material allegation in his petition, which was denied in the answer. Accordingly the ease was not proved as. laid, and the court did not err in awarding a nonsuit, on motion of the defendant.

Judgment affirmed.

Jenkins and Bloodivorth, JJ., concur.  