Butler v. Godley, No. 24457.

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: SUTTON
• Citation: 181 S.E. 494,51 Ga.App. 784
• Decision Date: 05 September 1935
• Docket Number: No. 24457.
• Parties: BUTLER et al. v. GODLEY et al.

51 Ga.App. 784

181 S.E. 494

BUTLER et al.
v.
GODLEY et al.

No. 24457.

Court of Appeals of Georgia,
Division No. 2.

Sept. 5, 1935.

[181 S.E. 494]

Rehearing Denied Sept. 20, 1935.

Second Motion for Rehearing Denied Sept 28, 1935.

Syllabus by Editorial Staff.

Error from City Court of Savannah; Alex R. MacDonell, Judge.

Suit by W. S. Godley and others against Mrs. Warren Butler and husband. To review a judgment overruling their demurrers to the petition, defendants bring error.

Reversed.

[181 S.E. 495]

F. P. McIntire, of Savannah, for plaintiffs in error.

Oliver & Oliver, of Savannah, for defendants in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

The plaintiffs brought suit for rent against a husband and his wife. It is alleged that the plaintiffs are owners of the leased premises, and that the wife is indebted for such past-due rent by virtue of a lease contract which is attached to the petition. The lease shows that it was entered into by the wife as the tenant and by a named real estate company as agent of the owners of the demised premises. It is alleged that the husband is liable, because he is head of the family and liable for the necessities of life furnished to his wife and children; and also by reason of his having in writing assumed the indebtedness sued for. Attached to the petition is a letter from the husband to the plaintiffs, stating that if they would bear with him he would pay the rent in full as he had always done with all of his obligations. Each of the defendants demurred to the petition. The court overruled the demurrers, and the defendants excepted. The court sustained a demurrer to a part of the answer of the wife, and error is also assigned upon this ruling.

1. A wife may bind herself individually for necessities of life furnished to the family. Bell v. Rossignol, 143 Ga. 150, 84 S. E. 542, L. R. A. 1915D, 1184, Ann. Cas. 1917C, 576. As where the credit is extended to the wife individually and exclusively. Georgia Grocery Co. v. Brunson, 24 Ga. App. 484, 101 S. E. 130; Oliver v. Webb, 12 Ga. App. 216, 76 S. E. 1081. Lodgings or a dwelling abode for the family unquestionably constitutes a necessity of life, and an obligation to pay the rent due thereon or therefor is an obligation to pay for a necessity of life for which the wife may become individually liable by express contract. Therefore a covenant to pay rent in a lease made by a married woman is binding upon her separate estate. See 30 C. J. 602, 922, §§ 142, 626. The lease contract on which it is sought to hold the wife liable in this case was executed by the wife as lessee, and by a named realty company as agent for a certain apartment building, as lessor; and the petition shows that such apartment building was owned by the plaintiffs. The wife demurred on the ground that the petition did not show that the realty company was agent for the owners and acted as such in executing this lease. We think that this point is not well taken, because the lease contract and the petition show that the real estate company was agent of the owners of a certain apartment building, and that the plaintiffs were the owners of this building.

The plaintiffs' petition was also demurred to on the ground that the lease contract sued on is void and not binding on the wife, because it does not appear that the realty company as such agent had written authority to bind its principal. It is true that where a contract is required to be in writing, the authority of an agent to execute the same on behalf of his principal must likewise be in writing. "Contracts creating the relation of landlord and tenant for any time exceeding one year must be in writing [Code of 1933, § 61-102]; and, when executed by an agent, the authority of the agent to execute it must likewise be in writing." Byrd v. Piha, 165 Ga. 397 (2), 141 S. E. 48; Baxley Hardware Co. v. Morris, 165 Ga. 359 (6), 140 S. E. 869; Duke v. Culpepper, 72 Ga. 842, 845. The Supreme Court in the Byrd Case planted its ruling squarely on section 4-105 of the Code, to wit, "The act creating the agency shall be executed with the same formality (and need have no more) as the law prescribes for the execution of the act for which the agency shall be created, " and disapproved and declined to allow the prior decision of Brandon v. Prit-chett, 126 Ga. 286, 55 S. E. 241, 7 Ann. Cas. 1093, wherein the opposite rule was laid down; the latter case not being a full-bench decision. The cases of McNamara v. Georgia Cotton Co., 10 Ga. App. 669, 73 S. E. 1092, and Wesley v. Boyd, 10 Ga. App. 9, 72 S. E. 514, following Brandon v. Pritchett, supra, are therefore squarely in conflict with the ruling made in the later Byrd Case, which was by a full bench. However, an agreement made on September 26, 1932, reciting that the tenant does lease certain premises and is "to have and to hold the said above-described property from the 1st day of October, 1932, for a term of twelve months thence next ensuing, said tenant paying therefor during said term the sum of $490.80, payable, in advance, in equal monthly installments of $40.90, on the 1st day of each and every

[181 S.E. 496]

month, beginning with the 1st day of October, 1932, " is not a lease contract for exceeding one year. Under the statute of frauds (Code of 1933, § 20-401), providing that "any contract for sale of lands or any interest in, or concerning them, " and/or "any agreement * * * that is not to be performed within one year from the making thereof, " has to be in writing, this lease contract would be required to be in writing. Atwood v. Norton, 31 Ga. 507. However, since the enactment of section 61-102 of the Code these provisions of the statute of frauds do not apply to a contract creating the relation of landlord and tenant, where made for not exceeding one year. A contract establishing the relation of landlord and tenant for one year, although made before the year begins, may be in parol. Steininger v. Williams, 63 Ga. 475; Ridgway v. Bryant, 8 Ga. App. 564, 70 S. E. 28; Gay v. Peak, 5 Ga. App. 583, 63 S. E. 650; Render v. Harris, 25 Ga. App. 302, 103 S. E. 179; 49 L. R. A. (N. S.) 820, note. So a real estate agent is not required to have written authority from the owner of the premises to execute in his behalf a lease contract with a tenant for one year, even though executed some time prior to the time when it is to begin.

The fact that this lease also provided that, "The tenant does covenant and agree to give the landlord, or his agent, not less than three months notice in writing of his intention to give up the premises at the end of this lease prior to the...