Byrd v. Piha

• Decision Date: 16 December 1927
• Docket Number: (No. 6136.)
• Parties: BYRD et al. v. PIHA.
• Court: Georgia Supreme Court

165 Ga. 397

141 S.E. 48

BYRD et al.
v.
PIHA.

(No. 6136.)

Supreme Court of Georgia.

Dec. 16, 1927.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; John D. Humphries, Judge.

[141 S.E. 49]

Petition by Leo Piha against C. M. Byrd and another. Judgment for plaintiff, and defendants bring error. Reversed.

Randolph, Parker & Fortson, of Atlanta, for plaintiffs in error.

Alston, Alston, Foster & Moise, of Atlanta, for defendant in error.

HINES, J. Mrs. Byrd owned a business building. She authorized her husband, the authorization being oral and not in writing, to rent and lease her real estate. In pursuance of this oral authority, the husband, on October 12, 1925, leased to Piha this building for a period of five years from December 1, 1925, at a stated monthly rental, payable promptly on the 1st day of each month, in advance. This lease was signed by Piha as lessee, and by the husband in his own name as lessor The lease contained a provision that, on failure of the lessee to pay the rent when due, the lessor had the right, at his option, to declare the lease void, cancel the same without any legal proceedings, re-enter and take possession of the premises. The lessee, not having paid his rent for the month of August, 1926, received on August 9, 1926, a letter from the husband, signed by the latter, his signature being followed by the word "agent, " in which the husband as agent informed the lessee that the lease was canceled for failure to pay the August rent on the 1st day of the month when it was due, by the terms of the lease, and the lessee was told that from that time he would occupy the premises as a tenant at will, but that the rent would be the same until further notice. The rent for May, 1927, fell due on Sunday, and was paid on the next day. On May 4, 1927, the husband, as agent for his wife, notified the lessee that, as per the notice given on August 9, 1926, he was given 60 days in which to vacate the premises. Thereafter, on June 1, 1927, the lessee paid the rent for June, 1927. On June 1, 1927, the lessee filed his petition against the wife and husband, in which he sought to enjoin them from ousting him as a tenant at will, and to be relieved against the alleged forfeiture of his lease. The defendants demurred separately to the petition, upon various grounds.

The case came on for a hearing on the application of the lessee for an interlocutory injunction. Counsel for the defendants presented to the court their demurrers. The court announced that it would postpone argument upon the demurrers until it had heard all of the evidence. Evidence, including the lease, was then introduced by the lessee. The lease was not executed under seal. It was admitted that the husband was agent for his wife for the renting or leasing of her property and collecting the rents, such agency being created in parol, but that no authority in writing was ever given by the wife to the husband, of any kind and character, and that the wife had...