Opinion
34528.
DECIDED MARCH 13, 1953.
Action on contract; from Wrightsville City Court — Judge Brinson. December 30, 1952.
Emory L. Rowland, for plaintiff in error.
J. W. Claxton, Francis F. Shurling, contra.
Where a tenant before the expiration of his term vacates the rented premises and surrenders them to the landlord, and the landlord informs the tenant that he will not release him from his contract of rental, but is looking to him for the rent on said premises according to his contract, the act of the landlord in permitting others to occupy the premises for a portion of such term and his collection of the rent from them does not relieve the tenant from liability for the rent under his contract of rental, and does not constitute an acceptance by the landlord of a surrender of the term by such tenant.
DECIDED MARCH 13, 1953.
W. M. Shurling filed, against W. M. Braswell in the City Court of Wrightsville, a suit in which he sought to recover $340 as a balance due him on a rental contract, dated September 1, 1950, and expiring January 1, 1952, there being attached to the petition an itemized statement thereof and a copy of said contract. The plaintiff alleged that the defendant had been served with notice of intention to sue, as provided by law in order to recover attorney's fees. The agreement recited that the plaintiff rented to the defendant a certain store building known as the Kizzie McAfee restaurant located in Wrightsville, for a period of 16 months, the rent being payable at $6 per week on each Saturday; and that failure to promptly pay same gave to the plaintiff the right to declare the lease void and take possession. The defendant agreed to pay ten percent attorney's fees on any part of the rental when past due. The itemized statement shows that there were paid to the plaintiff 12 weekly payments of $6 and one $2 payment, and that there was rent amounting to $414 due, or 69 weekly payments, leaving a balance unpaid thereon of $340. Attached to the petition appears a notice from J. W. Claxton, attorney for the plaintiff, dated February 13, 1952, in which he stated that he held for collection a rental contract on which was due $340. Attached to the petition appears for payment of ten percent attorney's fees, and that suit would be entered therefor, after ten days, in the City Court of Wrightsville, returnable to the May term, 1952, of said court.
The defendant answered, denying that he was indebted to the plaintiff in the sum of $340 or in any sum. The defendant admitted executing the contract, but averred that on December 3, 1950, he surrendered the premises to the plaintiff, who accepted them, and that the plaintiff had since then had several opportunities to rent the building, but failed to do so, and that by accepting said building the plaintiff relieved the defendant of any further liability on the contract. The defendant denied receiving the notice for attorney's fees.
The case proceeded to trial before a jury. The plaintiff testified: that he rented said premises to the defendant according to the contract sued on; that $340 was due on it; that he has never accepted the rented premises back from the defendant or released him from his contract; that the defendant approached him and told him that someone else was taking the building, and the plaintiff advised the defendant that he was looking to him for the rent, "but he did collect rent from Delmar Smith and Bo Hammock who occupied the building after Henry Braswell left"; that Henry Braswell occupied the premises from the beginning, and that he, Henry Braswell, paid the rent while he was there. The defendant testified: that he leased said premises from the plaintiff as set out in the contract on which suit is brought; that his brother. Henry Braswell, occupied them for awhile and left, that when his brother left, the defendant told the plaintiff that he had no further use for the building and he could rent it to someone else; that the plaintiff did not state that he would or would not accept same and release him from such contract; that Delmar Smith after that time occupied the building and paid the rent to the plaintiff; that Bo Hammock also occupied the building and paid the rent to the plaintiff after defendant's brother, Henry Braswell, left and moved out; and that he did get notice of suit and attorney fees from J. W. Claxton, attorney for the plaintiff. Delmar Smith testified on behalf of the defendant to the effect: that he was familiar with the building described in the rental contract between the plaintiff and the defendant; that he went to see the defendant about renting it, and the defendant told him to go and see the plaintiff; that he saw the plaintiff, and the plaintiff said for him to go see the defendant; that he then moved into the building and remained there for several weeks, and the plaintiff came to his place of business and collected the rent which was $6 per week; that the plaintiff told him he was looking to the defendant for the rent, but accepted rent from the witness.
Upon the conclusion of the evidence, the trial judge directed a verdict for the plaintiff for the full amount sued for, and a verdict was returned accordingly and judgment entered thereon in favor of the plaintiff and against the defendant for $340 principal, $21.78 interest, and $36.18 attorney fees and costs. The defendant moved for a new trial, and by amendment added this ground: "Because at the conclusion of the evidence introduced by plaintiff and defendant, the Honorable W. C. Brinson, Judge presiding in the trial of said case, upon motion of the plaintiff directed the jury to return a verdict in favor of the plaintiff for principal, interest, and attorney's fees, to which judgment directing said verdict W. M. Braswell then and there objected." The trial judge overruled said motion as amended, and the defendant excepts.
"Where there is no conflict in the evidence, and that introduced, with all reasonable deductions or inferences therefrom, shall demand a particular verdict, the court may direct the jury to find for the party entitled thereto." Code, § 110-104. The question is presented: Could the jury from the evidence adduced "with all reasonable deductions or inferences therefrom" have returned a verdict except for the plaintiff on said rental contract for the full amount claimed? The defendant claims that he returned the premises to the plaintiff and that others occupied them and paid the rent therefor directly to the plaintiff. The defendant contends that this amounted to rescinding the rental agreement with him and relieved him of any further liability. The plaintiff testified that he did collect rent from two other named persons after the defendant's brother had left, but that he advised the defendant that he was not relieving him from liability and was looking to him for the rent. We are familiar with the general rule that, if a landlord retakes possession of the rented premises for his own benefit, either directly or indirectly, before the termination of the lease, the tenant is relieved from liability for the portion of the term subsequent to the landlord's entry. See Gay v. Peake, 5 Ga. App. 583 ( 63 S.E. 650); Ledsinger v. Burke, 113 Ga. 74 ( 38 S.E. 313); Rucker v. Tabor, 127 Ga. 101 ( 56 S.E. 124). However, where a tenant before the expiration of his term vacates premises and notifies the landlord thereof, and the landlord refuses to release him from his contract of rental and notifies him that he will hold him to the same, the act of the landlord in going upon the premises and renting same to another does not constitute an acceptance by the landlord of a surrender of the term by the tenant. Hulsey v. Harrington, 57 Ga. App. 479 (2) ( 195 S.E. 901). Merely receiving payment of the rent from an undertenant does not necessarily effect a substitution of tenants and relieve the original tenant from liability under his contract. It requires a contract, express or implied, to bring about the substitution of tenants. Cuesta v. Goldsmith, 1 Ga. App. 48 ( 57 S.E. 983); Schachter v. Tuggle Co., 8 Ga. App. 561 ( 70 S.E. 93). The original tenant remains liable even though he sublets to another, and this liability is not affected by the fact that the landlord accepts payment of the rent from the subtenant. When the defendant notified the plaintiff that he no longer wanted these premises, the plaintiff stated to him that he would not release him from his liability for rent under the contract but was looking to him for the rent. See 18 Am. Eng. Enc. of Law (2d ed.) 293, cited in Cuesta v. Goldsmith, supra, and Hulsey v. Harrington, supra. See also Baldwin v. Lampkin, 14 Ga. App. 828 ( 82 S.E. 369), and Cox v. McKinley, 10 Ga. App. 492 ( 73 S.E. 751). There is no contention by the defendant that the plaintiff did not give him credit for the amount of rent received from Smith and Hammock, the two persons who occupied the building and paid rent to the plaintiff, after the brother of the defendant abandoned same. The defendant would be entitled to have the damages lessened by all sums received by the landlord as rent after the defendant gave up the premises.
Nothing to the contrary is held in the cases cited by the plaintiff in error. Featherston v. Reese, 36 Ga. App. 379 (3) ( 136 S.E. 811) holds: "Furthermore, the lessees having refused to enter, and having repudiated the alleged contract before the beginning of the lease term, the owner's act of reletting the premises without notice to the lessees that such reletting was on their account operated to discharge the lessees from liability, if any ever existed. Whether the owner, by giving such notice, could have held the lessees liable for the difference in rents need not be decided in this case" — citing Ledsinger v. Burke, 113 Ga. 74, supra; Rucker v. Tabor, 127 Ga. 101, supra; Hurt v. Kirby, 4 Ga. App. 43 ( 60 S.E. 802); Gay v. Peake, 5 Ga. App. 583 (3), supra. The above cases are not authority for the contention of the defendant that the landlord had accepted his surrender of the premises and relieved him from liability. In the instant case, the lessee took possession, under his brother, and then sought to get out of the contract, surrendering the premises back to the plaintiff, and the plaintiff informed him that he was looking to him for the rent. The taking of rent from Smith and Hammock did not amount to a rescission of the rental contract with the defendant.
It follows that no other verdict than that directed could have been rendered under the undisputed evidence. The court did not err in directing the verdict.
The only error assigned in the defendant's amended motion for new trial being the direction for the plaintiff of a verdict which was demanded under the evidence, the court properly denied such motion.
Judgment affirmed. Townsend and Carlisle, JJ., concur.