Baxley Hardware Co v. Morris, (No. 5996.)

• Decision Date: 15 December 1927
• Docket Number: (No. 5996.)
• Citation: 165 Ga. 359,140 S.E. 869
• Parties: BAXLEY HARDWARE CO. et al. v. MORRIS.
• Court: Georgia Supreme Court

165 Ga. 359

140 S.E. 869

BAXLEY HARDWARE CO. et al.

v.MORRIS.

(No. 5996.)

Supreme Court of Georgia.

Dec. 15, 1927.

(Syllabus by Editorial Staff.)

Atkinson, J., dissenting in part.

Error from Superior Court, Appling County; Jon P. Knight, Judge.

Suit by Mrs. F. A. Morris against the Baxley Hardware Company and others. Judgment for plaintiff, and defendants bring error. Reversed.

Mrs. F. A. Morris filed a petition for cancellation and injunction, alleging that the Baxley Hardware Company occupied premises owned by her, which she described; that such occupancy was under a lease which, so far as she was concerned, was verbal only and for five years only, but that she had learned shortly before bringing suit that said company held a lease for seven years purporting to have been executed by her; that she had never executed any written instrument leasing said property, and had never authorized any person to do so in her behalf; "however, that she considered her agreement to rent said building to said Baxley Hardware Company for a period of five years as a binding obligation upon her, and that in pursuance of said agreement she had permitted said Baxley Hardware Company to continue to occupy said building, although she had never executed to it any lease or contract of rental of any kind whatsoever." In her testimony at the trial was the following:

"The Baxley Hardware Company, with Mr. Minchew in charge, has occupied that building for a great many years; I suppose about two years before this five years. I imagine it is about seven years with this year. * * * The way I made agreements with Mr. Minchew about the rent, he asked Mr. Morris about it, and Mr. Morris came and asked me. I told him to let Mr. Minchew have it for five years. Mr. Minchew talked with me about it. Mr. Morris and Mr. Swain have been looking after that property for me ever since I have owned it. Up until Mr. Swain married into my family, Mr. Morris helped tend to the business. With my consent he looked after it entirely for me. I knew what he was doing and had him to look after it for me. He rented it at times for me and collected the rent for me. He told me where there was any changes made, and he always consulted me. I told him to go ahead and rent my property. I did not tell him to rent it for seven years; but I told him to go ahead and make contracts of rental. * * * He would ask me about how to rent it. I didn't tell him to go ahead and rent it like he thought it ought to be. I never did at any time make any rental contract with anybody myself. * * * I don't remember how many years * * * I have owned the business. I imagine something like 20 years—something like that. That has been true as to all of my affairs; I have had Mr. Morris [husband of petitioner] to look after them."

Shown the purported lease for seven years, petitioner testified that the subscription of her name thereto was by her husband, as she knew his handwriting, but that she did not know of the paper until January 11, 1926, which was the month in which suit was brought.

J. P. Highsmith and Wade H. Watson, both of Baxley, for plaintiffs in error.

J. B. Moore, of Baxley, and Gordon Knox, of Hazlehurst, for defendant in error.

Syllabus Opinion by the Court.

GILBERT, J. [1] 1. "Any contract for sale of lands, or any interest in, or concerning them, " to be binding upon the promisor, must be in writing signed by the party to becharged therewith, or some person by him lawfully authorized. Civ. Code 1910, § 3222 (4). The contract sought to be canceled in this proceeding, purporting to be a lease of real estate for a period of seven years, falls under the section cited.

2. The foregoing section does not apply "where there has been performance on one side, accepted by the other in accordance with the contract, " and "where there has been such part performance of the contract as would render it a fraud of the party refusing to comply, if the court did not compel a performance." Civ. Code 1910, § 3223 (2, 3).

3. "A deed to lands is not required to be under seal in this state." A. K. & N. R. Co. v. McKinney, 124 Ga. 929 (5), 53 S. E. 701, 6 L. R. A. (N. S.) 436, 110 Am. St. Rep. 215; Patterson v. Burns, 150 Ga. 198, 103 S. E. 241. "A lease contract to land for years is likewise not required to be executed under seal." United Leather Co. v. Proudflt, 151 Ga. 403, at page 405, 107 S. E. 327, 328, and citations.

L5, 6] 4. The contract sought to be canceled in this case concluded as follows:

"This contract entered into in duplicate this the 21st day of September, 1921, Mrs. P. A. Morris (L S.) Baxley Hardware Co., by D. M. Minchew (L. S.). Signed, sealed, and delivered in presence of J. C. Rogers."

Nowhere in the body of the instrument are to be found any words indicating that it was the intention of the signers thereof that the instrument should be under seal. It is well settled that the intention to execute a sealed...