Nicholes v. Swift

Decision Date14 November 1903
Citation45 S.E. 708,118 Ga. 922
PartiesNICHOLES v. SWIFT et al.
CourtGeorgia Supreme Court

Syllabus by the Court.

1. Where A. and B. entered into a parol contract by the terms of which B. was to rent a certain storeroom from A. for the term of two years at a stipulated price per year, and B. went into possession of the same under such contract, a tenancy at will was created, which either party could terminate by complying with Civ. Code 1895, § 3117. Accordingly, where B., more than a month before the expiration of the first rental year, gave A. written notice of his intention to terminate the tenancy at the end of that year, and, before the beginning of the second year, moved out of the rented premises, tendered the possession thereof to the landlord, and paid one year's rent, his liability under the contract was completely extinguished.

2. Although a tenant may abandon the rented premises before the expiration of the term, and may notify the landlord that he will no longer abide by the rent contract, the landlord has no right of action for the rent stipulated in the contract until the same falls due thereunder.

Error from City Court of Elberton; P. P. Proffitt, Judge.

Action by Thomas M. Swift and N. J. Penn against H. W. Nicholes. Judgment for plaintiffs, and defendant brings error. Reversed.

I. C Van Duzer, for plaintiff in error.

Jos. N Worley, for defendants in error.

FISH P.J.

This was a suit, begun by attachment, by Thomas M. Swift and Mrs. N. J. Penn against H. W. Nicholes, to recover $350, alleged by the plaintiffs to be due them for the rent of a certain brick storeroom in the city of Elberton for one year, beginning July 1, 1903, and ending July 1, 1904. The declaration in attachment alleged that in the year 1902 the plaintiffs rented the storeroom to the defendant, at $350 per year, for the term of two years, beginning on July 1, 1902; that the defendant took possession of the rented premises on that date, and occupied them during the first 12 months of said term; that on the 20th of May, 1903, he notified the plaintiffs that he would not occupy the storeroom longer than the first 12 months of the term of rental, and offered to turn over to them the keys, and moved out of the house; that they in good faith executed their part of the contract, and held the storeroom ready for the occupancy by the defendant for and during the remainder of said term of rental, and by so doing the same was left on their hands "unrented at a date too late to be rented for said remainder of said term"; and that defendant refused to pay them the sum of $350 due them for the rent of the property. The defendant denied that he owed the plaintiffs any amount for rent or otherwise; denied that he ever made any contract of rent with them covering the period from July 1, 1903, to July 1, 1904; and alleged that, if any such contract as the one set up by the plaintiffs was made, the same was not to be performed within a year, was not in writing, and could not be enforced. He further pleaded that, if he made the contract alleged by the plaintiffs, the rent sued for would not be due until July 1, 1904, and they could not obtain a general judgment upon the declaration filed in the attachment proceeding until after said date. By an amendment to his plea he alleged that the facts set up by the plaintiffs did not, under the law, make a case upon which a recovery could be had, and prayed the court to dismiss the attachment and the declaration filed thereon. Although this amendment was in the nature of a motion to dismiss the plaintiffs' case upon the ground that no cause of action was set forth therein, no ruling by the court appears to have been made thereon. Upon the trial, Swift testified that the storeroom belonged to him and Mrs. Penn, and he was managing it; that he told Nicholes that he would rent it to him for the term of two years, beginning the 1st of July, 1902, and ending the 1st of July, 1904, and would charge him as rent the sum of $350 for each year, payable at the end of each quarter; that the contract was never reduced to writing; that Nicholes took charge of the storeroom on July 1, 1902, and occupied it until the latter part of May or the 1st of June, 1903, when he moved out, and had not since occupied it; that about the 20th of May, 1903, Nicholes gave him both written and verbal notice that he would not hold the storeroom beyond July 1, 1903, but would then quit, and pay no more rent; that on the 29th of June, 1903, Nicholes, through Mr. Van Duzer, tendered to him the keys and the possession of the storeroom, and he refused to take the keys or to take charge of the storeroom; and that Nicholes had paid the rent for the year ending July 1, 1903. E. A. Cason testified that some time last fall he heard Nicholes say that he had rented the storeroom from Swift for two years at $350 a year. The plaintiffs then closed their case, and the defendant's attorney moved the court to direct a verdict for the defendant, upon three designated grounds. The court overruled this motion, and directed a verdict in favor of the plaintiffs for $350, whereupon the defendant excepted.

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