Opinion
32703.
DECIDED OCTOBER 18, 1949.
Distress warrant; from Cobb Superior Court — Judge Brooke. July 21, 1949.
Robert H. Brinson Jr., for plaintiff in error.
J. G. Roberts, contra.
The facts demanded a finding that the relationship of landlord and tenant existed between the plaintiff and the defendant in the distress-warrant proceedings, and there being no other question raised, the trial judge did not err in directing the jury to return a verdict in favor of the plaintiff landlord for the rent claimed for the time the defendant tenant occupied the premises.
DECIDED OCTOBER 18, 1949.
Design Inc. leased a building from the Marietta Industrial Association Inc. for seven years. The contract did not provide that the same could be sublet. The tenant, however, and Estralita Lamps Inc., entered into an operating agreement whereby the latter entered upon the premises. Litigation arose in Cobb Superior Court and a receiver was asked for Design Inc. Thereupon, the Marietta Industrial Association Inc., the landlord, intervened and set up that, "It, as landlord, is willing to ratify and confirm the operating agreement or lease entered into between the plaintiff and the defendant on December 1, 1948, subject to a modification, which this intervenor understands is satisfactory to the defendant, so that the sum of $275 per month which the plaintiff was to pay to Design Inc., shall be paid to this intervenor, $175 of which sum is to cover current monthly rental and the additional $100 is to apply to the rental arrearages as shown in its original intervention. Design Inc., under this agreement is to be relieved of the necessity and obligation to pay current rents so long as this agreement is in force." The court passed an order, which provided in part as follows: "It further appearing to the court that Marietta Industrial Association Inc., an intervenor and the landlord of the premises in question, has by intervention agreed to recognize Estralita Lamps Inc., as a tenant and sublessee of Design Inc., in the premises and has agreed to accept the sum of $275 per month as rent on said premises, to be applied as follows: $100 on the indebtedness due Marietta Industrial Association Inc., by Design Inc., in the amount of $1175 as of January 1, 1949, and the sum of $175 to apply as rental for the premises in question, so long as Estralita Lamps Inc., shall occupy the premises in question, it is therefore ordered that so long as Estralita Lamps Inc., shall occupy said premises that it pay to Marietta Industrial Association Inc., $275 per month as rental on said premises under the operating agreement now existing between Design Inc., and Estralita Lamps Inc. After $1175 is paid to Marietta Industrial Association Inc., then Estralita Lamps Inc., shall pay $100 of said $275 rental to Design Inc., so long as said operating agreement remains in force and effect." The Estralita Lamps Inc., failed to pay the rent referred to, and the landlord sued out before a justice of the peace a distress warrant returnable to Cobb Superior Court and against said Estralita Lamps Inc., which was levied on certain property. The defendant filed its affidavit denying that the rent was due the landlord. The distress-warrant case came on for trial before a jury in said superior court, and the above facts appeared. The defendant contended that there was no relationship of landlord and tenant between it and the Marietta Industrial Association Inc., and that it was not liable for the rent for said premises during the time it remained in possession thereof, which was until April 2, 1949. Upon the conclusion of the plaintiff's evidence the defendant moved to dismiss the case on the following grounds: "Defendant is not, and never has been, a tenant of the plaintiff, and no landlord-tenant relationship has ever existed between the parties, nor has the plaintiff ever affirmatively elected to treat Estralita Lamps Inc., as its tenant; that an outstanding lease from Marietta Industrial Association Inc., to Design Inc., and an operating agreement between Design Inc., and Estralita Lamps Inc., makes the defendant merely the sub-tenant of the tenant and not the tenant of the plaintiff such that a distress warrant would lie against the defendant by the plaintiff. . . Plaintiff has already had his day in court against his tenant, Design Inc., who was in possession of the premises at all times. Defendant was at all times while in possession the tenant of Design Inc., and was never the tenant of Marietta Industrial Association Inc. Further, said order of the court on January 22, 1949, made defendant merely the agent of its landlord, Design Inc., to pay direct to plaintiff." The court overruled this motion, and limited the defendant to evidence as to payment by it of rent to the Marietta Industrial Association Inc. The judge directed the jury to return a verdict for the rent sued for. The defendant excepts directly to such verdict and also to the judgment overruling its motion to dismiss.
"When the owner of real estate grants to another simply the right to possess and enjoy the use of such real estate, either for a fixed time or at the will of the grantor, and the tenant accepts the grant, the relation of landlord and tenant exists between them." Code, § 61-101. Under the order of the court in the receivership proceedings, in which the plaintiff landlord intervened, the Marietta Industrial Association Inc., Design Inc., and Estralita Lamps Inc., each accepted the terms thereof and the defendant, Estralita Lamps Inc., became a tenant of the plaintiff landlord during the time it occupied the premises of the landlord, and became obligated to pay the rent as provided for in the court order. The defendant's contention that it was merely a subtenant of the original tenant, Design Inc., is not well founded. Under the agreement, incorporated in the court order, the landlord recognized the tenancy of the defendant and accepted the same. A landlord may elect to treat a subtenant as his own tenant even though the lease did not in the first instance give a right in the tenant to sublet. Stallings v. Shell Petroleum Corp., 54 Ga. App. 359 (3) ( 188 S.E. 50). The intervention and the court order quoted in part herein fixed the rights of the parties and thereunder the Estralita Lamps Inc. became the tenant of the landlord and obligated to pay the rent provided for in the order, so long as it occupied the premises of the landlord.
The defendant in this case therefore occupied these premises under the order of the court rendered in the receivership case between it and Design Inc., the original tenant of the leased premises. There was a specific agreement to pay $275 a month, as rental. By continuing to remain on the premises, the defendant did so under the terms and conditions imposed by the court in said order in the receivership proceedings, to which the landlord intervened. Both the landlord and the defendant accepted the terms and conditions of this order.
A motion is made to assess damages against the plaintiff in error on the ground that the writ of error in this case was sued out for delay only. This court has considered the motion and the cited case of Moore Jester v. H. B. Smith Machine Co., 4 Ga. App. 151 (5) ( 60 S.E. 1035), together with the record in this case, and such motion is denied. This court is not satisfied that this appeal was made for delay only, even though in the opinion of the court the judgment below was proper and the contentions of the defendant are determined adversely to it.
The trial judge did not err in overruling the motion of the defendant to dismiss the case and did not err in thereafter directing a verdict for the plaintiff landlord for the rent claimed, being the agreed rent for the time the defendant occupied the premises of the landlord.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.