Allen v. Montgomery

• Decision Date: 11 November 1920
• Docket Number: 11478.
• Citation: 105 S.E. 33,25 Ga.App. 817
• Parties: ALLEN v. MONTGOMERY.
• Court: Georgia Court of Appeals

105 S.E. 33

25 Ga.App. 817

ALLEN v. MONTGOMERY.

No. 11478.

Court of Appeals of Georgia, Second Division

November 11, 1920

Syllabus by the Court.

Where there is a lease for a year and the tenant, after the expiration of the lease, by consent of both parties, remains in possession of the premises and continues to pay rent to the landlord under the terms of the lease, which rent is accepted by the landlord, the law implies a renewal of the lease for another year.

Where it is not essential to the validity of a contract that it be executed under seal, but where it is, in behalf of a principal, executed under seal by an agent possessing legal authority, not under seal, to execute it and bind his principal, the contract will, as against the principal, be disregarded as a specialty and be treated as only a simple contract in writing. Its execution under seal not being essential to the validity of the transaction, the seal will be treated as surplusage. Drumright v. Philpot, 16 Ga. 424(3), 431, 60 Am.Dec. 738.

(a) Even though it might be adjudged that an agent is unauthorized, when acting under verbal authority only, to bind his principal by a contract in writing (but see Brandon v. Pritchett, 126 Ga. 286, 55 S.E. 241, 7 Ann.Cas. 1093), still, where the rent contract, as executed by the agent, is for a term of only one year, and therefore not required by the statute to be in writing, the fact that it may have been actually reduced to writing would not operate to render it invalid as against the principal.

Where one in possession of premises either as a tenant holding over or as a tenant at will makes a written offer to the landlord to become a tenant for the premises for a year, and the offer is accompanied with a sum of money in payment of a month's rent for the premises under the proposed contract, and the landlord makes no reply to this communication of an offer, but accepts the money and allows the tenant to remain on the premises, such conduct upon the part of the tenant and the landlord would authorize the inference that there was a tacit acceptance by the landlord of the offer of the tenant, and that a lease contract for a year was created between the parties.

Additional Syllabus by Editorial Staff.

If the nature and circumstances of the transaction show that the intention was to bind the principal and not the agent, effect will be given thereto, though the agent signs his own name.

The original common-law rule that a seal is essential to the validity of a writing should have no place in modern jurisprudence.

Under Civ. Code 1910, § 6207, a decision of the full bench not overruled speaks with the full force and effect of a statute and supersedes subsequent rulings in conflict with it.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Dispossessory proceedings by Mrs. E. P. Montgomery against W. S. Allen. Judgment for defendant tenant, and from a judgment sustaining a certiorari and entering a final judgment dispossessing the tenant, he brings error. Reversed.

Smith J., dissenting.

W. S. Dillon and C. M. Lancaster, both of Atlanta, for plaintiff in error.

Etheridge, Sams & Etheridge, of Atlanta, for defendant in error.

STEPHENS J.

This was a proceeding by a landlord to dispossess his tenant, upon the ground that there was a tenancy at will and that the tenant had, by the landlord, been given 60 days' notice, as required by the statute, of an intention on the part of the landlord to terminate the tenancy. The sole question for our determination is whether or not the tenant, when the landlord sought to dispossess him, held as a tenant at will or under an unexpired lease for a year. The tenant had rented the premises under a written lease for a "term of twelve months commencing on the 1st day of April, 1918, and ending on the 31st day of March, 1919." This lease had already expired, and the tenant was, at the time the landlord sought to dispossess him, living on the premises under either an express or an implied renewal of this lease, or under a separate and distinct agreement for another year, or as a tenant at will. If the tenancy was at will, the tenant was properly dispossessed; but if the tenancy was for a year, either under renewal of the old lease or under a new contract for a year, the tenant, since his term had not expired, was improperly dispossessed.

The evidence shows that on the 11th day of April, 1919, after the expiration of the original lease which expired the 31st day of March, 1919, the tenant remained in possession and paid to the agent of the landlord as rent for the said month of April the amount stipulated in the lease as the monthly rental for the premises, which amount was accepted by the agent, who, as is inferable from the evidence, was acting for the landlord. Such acceptance of rent by the landlord amounted to a consent to allow the tenant to remain on the premises as tenant. "If there be a lease for a year and by consent of both parties the tenant continue in possession afterwards, the law implies a tacit renovation of the contract. They are supposed to have renewed the old agreement, which was to hold for a year." Lord Mansfield in Wright v. Darby, 1 T. R. 161, cited with approval in Roberson v. Simons, 109 Ga. 360, 362, 34 S.E. 604. See, also, Kennesaw Guano Co. v. Miles, 132 Ga. 763, 770, 64 S.E. 1087; Cavanaugh v. Clinch, 88 Ga. 610, 15 S.E. 673; Ridgway v. Bryant, 8 Ga.App. 564, 70 S.E. 28. The tenant holding for a year under renewal of the original lease cannot afterwards be dispossessed as a tenant at will after 60 days' notice to him by the landlord of a termination of such tenancy.

2. It is contended, however, in behalf of the landlord, that the original lease was invalid and no tenancy for a year was thereby created. The invalidity of the lease is urged upon the ground that the agent of the landlord who executed the lease had no authority to do so, since the lease was a written instrument under seal and there was no authority under seal authorizing the agent to execute it in behalf of the landlord. While it is true that an agent, without authority under seal, cannot bind his principal by a contract under seal, yet it is nevertheless true that where a contract does not, for its validity, require a seal, its execution under seal by an agent without authority under seal does not necessarily render the instrument void as against the principal. If a contract is unnecessarily executed under seal, it may nevertheless be treated as a valid common-law parol contract. If the sealed instrument would have been a valid contract without the seal, and its execution without a seal was within the authority of the agent executing it, its execution under seal will be treated as surplusage. While the contract would, as against the principal, be void as a specialty, it would nevertheless be a good and valid writing by parol. In Drumright v. Philpot, 16 Ga. 424, 60 Am.Dec. 738, it is held:

"Where there is a complete execution of his authority by an agent, and something more is added, not warranted, the execution is good for that which is authorized and the excess only is void."

The court in its opinion says:

"It cannot be disputed that an agency, whether general or special, and whether conferred in one way or another, unless the contrary manifestly appears, is always construed to include all the usual and necessary means of executing it with effect. [ Citing.] And it has been held that an agent, employed to sell a slave, may warrant him to be sound, unless inhibited by the terms of the authority under which he acted. [ Citing.] Gough [the agent], then, was clothed, by implication, with power to warrant the soundness of Beckey and her two children. Strike off the seal as being unauthorized, still, the warranty is good."

The court then proceeds to quote from Lord Coke:

"Where a man doeth that which he is authorized to do and more, there it is good for that which is warranted, and void for the rest."

And quotes from Judge Story:

"Where there is a complete execution of the authority and something ex abundanti is added, which is improper, there the execution is good and the excess, only, is void."

The written lease, therefore, in the instant case--treating the seal as surplusage--constituted a simple contract in writing between the landlord and the tenant. It was signed by the agent of the landlord styling himself as agent for his principal, and recited in its body that it was a contract between the agent by name describing himself as the duly constituted agent for the landlord, and describing the premises leased, which the evidence shows belonged to the principal, and which the agent had general parol authority to rent upon such terms as he thought best. "Contracts not under seal, other than negotiable instruments, require but little observance of mere form. The intention of the parties is the prevailing consideration in the construction of this class of contracts; and the rule is well established that, if the nature and circumstances of the transaction show that the intention was to bind the principal and not the agent, effect will be given to such intention, though the agent signs in his own name merely." 1 Am. & Eng. Ency. of Law (2d Ed.) 1050, 1051. See 2 C.J. 674; Merchants' Bank of Macon v. Central Bank of Georgia, 1 Ga. 418, 44 Am.Dec. 665; Cleveland v. Stewart, 3 Ga. 283; Raleigh & Gaston R. Co. v. Pullman Co., 122 Ga. 700, 709, 50 S.E. 1008. This contract, if renewed, continued for another year, and the tenant could not be dispossessed as a tenant at will after 60 days' notice from his landlord.

The ruling here relied upon in Drumright v. Philpot cannot be disposed of as being obiter upon the ground that the decision could have been predicated alone upon the...