F. & W. Grand Five-Ten-Twenty-five Cent Stores, Inc. v. Eiseman
| Docket Number | 4733. |
| Decision Date | 18 April 1925 |
| Citation | 127 S.E. 872,160 Ga. 321 |
| Parties | F. & W. GRAND FIVE-TEN-TWENTY-FIVE CENT STORES, INC., v. EISEMAN ET AL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Writings relied upon to take a transaction out of the statute of frauds must be complete in themselves, and must contain the entire agreement, and must disclose the subject-matter, the parties thereto, and all the terms of the undertaking.
On April 9, 1924, the plaintiff addressed a letter to Joseph P Day, Inc., the duly authorized agent and broker of the defendants, for the purpose of securing a lease of described real estate owned by the defendants in the city of Atlanta in which letter the plaintiff authorized said agent and broker to negotiate for it a lease of said premises for a term of 25 years on certain specific terms and conditions. On May 9, 1924, said agent and broker, in reply to the letter of April 9, 1924, wrote plaintiff a letter stating that it had taken up with the owners of said premises the contents of plaintiff's said letter, and had secured their acceptance and approval of the lease upon the terms and conditions outlined in said letter of plaintiff. Held, on general demurrer, that the letter of the plaintiff to the agent and broker of the owners, in view of the allegation of the petition that Day, Inc., was the duly instituted agent of the owners, constitutes an offer by the plaintiff to lease from the owners these premises upon the terms and conditions therein stated; that the letter of the agent and broker of May 9, 1924, in reply to said letter of the plaintiff constitutes an acceptance by the owners of said offer of the plaintiff; and that the offer and acceptance constitute a binding agreement between the parties, if these writings otherwise meet the requirements of the statute of frauds.
The letter of the plaintiff to Joseph P. Day, Inc., is not a mere authorization to the latter to institute, as plaintiff's agent, preliminary negotiations looking to the formation of a contract of lease; but, on the contrary, when construed in the light of all the circumstances, constitutes an offer on the part of the plaintiff to lease the premises on the terms and conditions therein stated, which offer the plaintiff authorized the agent and broker of the owners to submit to them.
The agent of the party seeking to enforce a contract cannot sign the memorandum required by the statute of frauds so as to bind the other party thereto, as this would in effect be one party binding the other party, and to allow one of the parties to sign, either by himself or by an agent, as an agent of the other, would open the door to the fraud which the statute is intended to prevent; but a mutual agent may sign the memorandum when authority so to do has been by both parties actually conferred upon him, with knowledge of each that he is acting for both, or where it is deemed to have been conferred because of the nature of his office or occupation. Contracts of dual agency are not void per se, but only so when the fact that the agent represented both parties was not known to each.
Where a memorandum for lease of premises provides for the payment of a stipulated annual rental, but does not state when it shall be due, it is generally payable at the end of each rent year. If for any reason the time of payment of the annual rental should fall under any of the exceptions to the general rule the law would still fix the time of payment, and thus the time of payment would be rendered certain.
A memorandum for a lease of land, to be sufficient to meet the requirements of the statute of frauds, must name, or in some way indicate or show, who are the parties to such contract. If the lessor is described in the memorandum as owner, the description is sufficient, although he is not named.
Where a contract for the lease of real estate is in writing, signed by both parties, is certain and fair, is for an adequate consideration, and capable of being performed, a court of equity, as a matter of course, will decree its specific performance.
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Suit by F & W. Grand Five-Ten-Twenty-five Cent Stores, Incorporated, against Rosa Eiseman and others. Judgment of dismissal, and plaintiff brings error. Reversed.
Dorsey, Brewster, Howell & Heyman, Herman Heyman, and Little, Powell, Smith & Goldstein, all of Atlanta, and Charles Schwartz, of New York City, for plaintiff in error.
Douglas & Douglas and Candler, Thomson & Hirsch, all of Atlanta, for defendants in error.
HINES, J. (after stating the facts as above).
1. To be sufficient as a memorandum under the statute of frauds, a writing must be complete in itself, leaving nothing to rest in parol. The entire agreement must be expressed in the writing or writings relied upon to take the transaction out of the statute. The memorandum must disclose the subject-matter of the contract, the parties thereto, the promise or undertaking, and the terms and conditions. North v. Mendel, 73 Ga. 400, 54 Am.Rep. 879; Lester v. Heidt, 86 Ga. 226, 12 S.E. 214, 10 L.R.A. 108; Douglass v. Bunn, 110 Ga. 159, 35 S.E. 339; Oglesby Grocery Co. v. Williams, 112 Ga. 359, 37 S.E. 372; Tippins v. Phillips, 123 Ga. 415, 51 S.E. 410; Borum v. Swift, 125 Ga. 198, 53 S.E. 608; Pearce v. Stone, 125 Ga. 444, 54 S.E. 103; Hightower v. Ansley, 126 Ga. 8, 11, 54 S.E. 939, 7 Ann.Cas. 927; Corbin v. Durden, 126 Ga. 429, 55 S.E. 30; Richardson v. Perrin, 133 Ga. 721, 66 S.E. 899; Barnes v. Cowan, 147 Ga. 478, 94 S.E. 564; Moore v. Adams, 153 Ga. 709, 113 S.E. 383, 23 A.L.R. 925. If the memorandum relates to the sale or lease of lands, it need not be more specific than is required in a deed of conveyance or an indenture of lease.
2. It is insisted by counsel for the defendants that the two papers upon which the plaintiff relies to establish the contract of lease between it and the defendants do not contain an offer and acceptance and do not evidence an intention to make a contract binding under the statute of frauds. The letter of April 9, 1924, from the plaintiff to Joseph P. Day, Inc., when construed in the light of the allegations of the petition, constitutes an offer from the plaintiff to rent from the defendants the premises therein described. The petition alleges that Joseph P. Day, Inc., was the duly authorized agent and broker of the defendants, to secure a lease of the property owned by the defendants and described in the petition; that on April 9, 1924, Joseph P. Day, Inc., approached petitioner on behalf of the defendants, and requested petitioner to authorize said agent and broker to submit to its clients an offer for the rental of said property; and that petitioner submitted to said agent and broker the offer for rental contained in its letter of April 9, 1924, on the terms and stipulations therein stated. These allegations of the petition are admitted by the demurrer; and, in view of these facts, we think that this letter of petitioner to the broker and agent of the defendants constitutes an offer by petitioner to the defendants to lease these premises upon the terms and conditions therein stated. The petition further alleges that on May 9, 1924, said agent and broker, acting under the direction and on behalf of the defendants, accepted said offer and wrote to petitioner the letter of that date, in which the writer stated that they had taken up with the owners of the property the contents of plaintiff's letter of April 9, 1924, and had secured the owners' acceptance of the offer and their approval of the lease, the terms and conditions of which were outlined in petitioner's letter. The allegation of the petition that the agent and broker, acting under the direction and on behalf of the defendants, accepted said offer of lease, is admitted to be true by the demurrer. In view of these facts, we think that the offer of lease contained in petitioner's letter of April 9, 1924, was duly accepted by the defendants by and through their agent and broker, who, the petition alleges, was the duly authorized agent of the defendants in this transaction. This acceptance of petitioner's offer was unconditional; and the offer and the acceptance thereof constitute a binding agreement between the parties, if the writings otherwise meet the requirements of the statute of frauds.
3. It is further insisted by the defendants that the letter from plaintiff to Joseph P. Day, Inc., only authorized preliminary negotiations looking to the formation of a contract, and did not authorize the agent to consummate the actual agreement. The language, "we authorize you to negotiate a lease for us," in this letter, standing alone and disassociated from the facts stated in the petition, would seem to constitute the addressee the agent of the plaintiff, with authority to negotiate a lease for the plaintiff, of the premises in dispute. In view of the fact that the corporation to whom this letter was addressed was the duly authorized agent of the owners to lease this property, and in view of the fact that the plaintiff and this agent had had a conversation as to the leasing of these premises, the fair construction of this language is that the plaintiff's intention was to inform the agent that it was willing to rent these premises upon the terms and conditions stated in this letter, and that in effect the letter was an offer to the owners to rent these premises upon the terms and conditions therein stated. When we take into consideration the fact that the addressee was the agent of the owners, authorized to lease the premises, the plaintiff meant simply to inform the agent that it was willing to lease the premises upon these terms and conditions; and this letter to the agent constituted an offer to lease upon such terms and...
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