Bowling v. Hathcock, (No. 12207.)

• Decision Date: 12 May 1921
• Docket Number: (No. 12207.)
• Citation: 27 Ga.App. 67,107 S.E. 384
• Parties: BOWLING v. HATHCOCK et al.
• Court: Georgia Court of Appeals

27 Ga.App. 67

107 S.E. 384

BOWLING

v.HATHCOCK et al.

(No. 12207.)

Court of Appeals of Georgia, Division No. 1.

May 12, 1921.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Proceeding by E. M. and T. O. Hathcock against C. C. Bowling. Judgment for plaintiffs, and defendant brings error. Affirmed.

John H. Hudson, James & Bedgood, and Norman I. Miller, all of Atlanta, for plaintiff in error.

Frank Carter and E. V. Carter, Jr., of Atlanta, for defendant in error.

BROYLES, C. J. We deem it advisable to discuss the last two headnotes. On June 25, 1920, E. M. & T. O. Hathcock sued out a dispossessory warrant against C. C. Bowling. The relation of the parties was that of landlord and tenant. The affidavit, which was the basis of the dispossessory warrant, alleged that the defendant had failed to pay the rent when due and was holding over beyond his term after a demand for possession of the premises in dispute. The defendant filed his counter affidavit, and denied that he was holding possession of the premises over and beyond his term, and alleged that he had paid or tendered all the rent due, and that he had substantially complied with all the terms of the lease under which he was holding the premises. The case was tried on the issues thus formed, and the plaintiffs recovered the premises, and $299, as double rent up to the date of the verdict. The defendant filed a motion for a new trial, which was overruled, and he excepted.

The evidence showed that the plaintiffs were tenants in common, and that the defendant was in possession of the premises under a lease which expired May 31, 1920, and which provided for the payment of rents in monthly installments, and that the installments must be paid in advance, not later later than the 6th day of the month, and that the defendant might renew the lease upon giving written notice 60 days before the expiration thereof. The plaintiffs contended that this notice was not legally given, since the notice was addressed to only one of the plaintiffs, whereas, to be binding, it should have been addressed to both. A lessee of premises from tenants in common must serve notice of his intention to quit or renew on all lessors. See 7 Ruling Case Law, § 68, p. 874, where it is said:

"Relation of cotenant is not of such a nature that notice served on one cotenant binds the remaining cotenant."

See also, in this connection, 38 Cyc. p. 110 and numerous cases cited in footnote.

Upon the trial it was shown that, on March 4, 1920, the defendant wrote to T. O. Hathcock, one of the plaintiffs, the following letter:

"I am inclosing you the March rent check $15. I hereby accept option to lease as per contract, the building at No. 307 Bast South Main street, College Park, Ga., and premises for the period and at the price under the conditions named in said contract. Please acknowledge receipt of this letter of acceptance."

On March 13, 1920, T. O. Hathcock replied to this letter as follows:

"I received your letter of March 4, 1920, some days ago, and have delayed answering same on account of sickness. I note what you say relative to accepting the option to extend the lease covering the contract now existing between yourself and E. M. Hathcock and myself, and as the letter is only addressed to me, I would be glad if you would address a joint letter to E. M. Hathcock and myself, notifying us of your intention to exercise your option for a four-year contract, beginning June 1, 1920. as provided for in our contract dated May 28, 1919."

The defendant did not reply to this letter until May 6, 1920. On that date he wrote the following letter:

"Messrs. E. M. & T. O. Hathcock, Atlanta, Ga.—Gentlemen: In accordance with Judge T. O. Hathcock's suggestion, made some time ago, I hereby notify you jointly that I will avail myself of the option to lease your building and premises at Number 307 East South Main Street, College Park, Ga., as provided in our contract made last year on this subject. * * * I had given Judge Hathcock previous notice to this effect individually, only...