Mendel v. Barrett & Son

Bell, J. 1. While a landlord does not waive his right of action against his tenant merely by allowing a subtenant or assignee of the original tenant to remain in possession of the premises, even though he accept payment of the rents from the subtenant or assignee with knowledge of such subletting or assignment, the original tenant may be released from liability by an agreement with the landlord for the substitution, or by the landlord’s electing to proceed against the subtenant as his own tenant. See Cuesta v. Goldsmith, 1 Ga. App. 48 (57 S. E. 983); Hudson v. Stewart, 110 Ga. 37 (35 S. E. 178). “One tenant may replace another by virtue of an express contract of substitution; or such a contract may be. created, as may any other similar contract) by a mutual course of eonduct that indicates an agreement to effect such substitution, as well as by spoken or written words.” Golden v. Adler, 16 Ga. App. 342 (2) (85 S. E. 349); 16 R. C. L. 847, § 347. 2. The evidence was sufficient to authorize the inference of an express contract whereby the plaintiff landlord agreed to a substitution of the first assignee of the written lease as his tenant in lieu of the original lessor; but, whether such agreement when standing alone would be binding and enforceable in view of the fact that the original lease was for a period of more than one year, and therefore necessarily in writing, and the agreement to substitute was in parol, the evidence nevertheless warranted the conclusion that the plaintiff expressly agreed to accept the second assignee of the written lease as his immediate tenant, and that this agreement was so far executed as to be taken out of. the statute of frauds. If, as the'evidence offered in behalf of the defendant tended to show, the second assignee paid a sum'of money to the first assignee for a transfer of the lease, with the understanding with the plaintiff that he would adopt the second assignee as his immediate tenant, and if such second assignee thereupon exercised a control over the premises to the extent of allowing the same to be used by another, to whom he made a third assignment of the lease and from whom the plaintiff thereafter accepted the rents, the agreement between the landlord and the second assignee would operate as a substitution of the second assignee as the immediate tenant in lieu of any prior tenant. -Although the agreement was in parol, it was removed, by execution, from the operation of the statute of frauds; and this is so irrespective of whether such second assignee became a tenant at will or for the period of the written lease. Civil Code (1910), §§ 3693, 3223; Lynch v. Poole, 138 Ga. 303 (75 S. E. 158); Sikes v. Carter, 30 Ga. App. 539 (2) (118 S. E. 430); Ambrose v. Ambrose, 94 Ga. 655 (19 S. E. 980); Bliss v. Gardner, 2 Ill. App. 422 (2). The jury were, therefore, authorized to find that the original lessor was discharged from liability to pay the rents. 3. “Where long extracts from the charge of the court'are excepted to, the plaintiff in error must specify what parts of them are erroneous or inapplicable. If this be not done, and some parts be applicable, a new trial will not be granted because of such charges.” Grace v. Martin, 83 Ga. 245 (5) (9 S. E. 841); Seaboard Air-Line Ry. v. Barrow, 18 Ga. App. 261 (3 a) (89 S. E. 383); Seaboard Air-Line Ry. v. Lyon, 18 Ga. [582] App. 266 (5) (89 S. E. 384). Under this rule a new trial should not he ordered upon the first ground of the amendment to the motion for a new trial, even though some parts of the charge therein excepted to may have been erroneous, other parts being applicable and correct. Decided August 13, 1924. 5. The plaintiff relied for a recovery upon the obligations of the defendants as contained in the original lease contract, and the court did not err as against him in stating the contentions of the parties as in the excerpt complained of in the second ground of the amendment to the motion for a new trial. 6. The evidence authorized the verdict found for the defendants, and for no reason assigned did the court err in overruling the plaintiff’s motion for a new trial. Judgment affirmed. Jenlmis, P. J., and Stephens, J., concur. Orrin Roberts, for plaintiff. R. L. & II. C. Cox, for defendants.