Hayes v. City of Atlanta

• Decision Date: 17 January 1907
• Docket Number: 14.
• Citation: 57 S.E. 1087,1 Ga.App. 25
• Parties: HAYES v. CITY OF ATLANTA.
• Court: Georgia Court of Appeals

57 S.E. 1087

1 Ga.App. 25

HAYES v. CITY OF ATLANTA.

No. 14.

Court of Appeals of Georgia

January 17, 1907

Syllabus by the Court.

The question as to whether a leasehold estate for less than five years is property, for which compensation must be paid when it is taken or damaged for public purposes, is not properly before the court. The petition claimed such damages, and there having been no attack upon the sufficiency of the petition, upon plaintiff's exception to the grant of a nonsuit the defendant will not be allowed to raise the question not made in the record, that damages for such taking are not recoverable.

The plaintiff, in order to support his action, relied upon a written lease demising the premises to him for two years. The contract was under seal, signed by the plaintiff as lessee and by the owner of the premises, through her agent, as lessor; but it appeared that the agent's authority was in parol only. Held: (a) An agent without a written authority under seal cannot bind his principal by a written contract under seal; nor can such a contract, so executed, be ratified by the principal by any act less solemn than a writing under seal. (b) Such a contract, so evidenced as against the lessor, was, as to her, as if made in parol, and became a tenancy at will, upon the lessee entering into possession under it. (c) A tenancy at will of one party to the contract is a tenancy at will of the other also, and therefore the result of such a contract was to create the ordinary relation of tenancy at will. (d) The estate of a tenant at will is a leasehold estate.

The writing referred to in the preceding headnote was of some value as evidence in the case, and the court erred in excluding it.

Ordinarily the recovery for the taking or damaging of a leasehold estate is measured in accordance with its market value; but, since the estate of a tenant at will is not assignable, it does not have a market value in the usual sense, and therefore the actual damages must be determined by the jury, in the light of the proved facts and circumstances.

Upon its expiration, an estate of indeterminate duration will be treated as if the term were fixed and certain originally.

The plaintiff, in order that the jury may properly estimate the value of his leasehold estate and determine the amount of damage that has been done to the same, may not only show by proof that he was able to conduct a profitable business in the rented premises, but may prove this fact with all the definiteness of which it is capable; and therefore the court erred in excluding his testimony as to the amount of his profits.

Error from City Court of Atlanta; Reid, Judge.

Action by one Hayes against the city of Atlanta. Judgment for defendant, and plaintiff brings error. Reversed.

Staton & Phillips and Etheridge, Boykin & Etheridge, for plaintiff in error.

James L. Mayson and William P. Hill, for defendant in error.

POWELL J.

It appears from the record that in 1903 the city of Atlanta, in constructing what is known as the "Peters Street Viaduct," obstructed and practically destroyed the ingress and egress to the premises in which the plaintiff was conducting a profitable business. On February 11, 1904, the plaintiff brought suit against the city, alleging that he had a leasehold interest in the property, having rented the same from one Mrs. Alexander for a term of two years from April 1 1902, to April 1, 1904, and that this leasehold estate had been damaged by the erecting of the viaduct to the extent that in June, 1903, he was forced to abandon the business though he was required to pay the rent monthly up to the time of the beginning of the action. He set up the specific injuries to his business in detail, but distinctly sued only for "damages to his leasehold estate." He attached a copy of the purported lease from Mrs. Alexander to himself. An inspection of this instrument shows that it is signed by the plaintiff, and by Mrs. Alexander, through her agent, M L. Thrower, and that it is under seal. Upon the trial it appeared that Thrower had only parol authority from Mrs Alexander to sign the lease, and that she was not present when it was executed. The plaintiff sought to show that Thrower's signing of his principal's name to the sealed lease was in accordance with a general custom prevailing among renting agents in Atlanta; but the court did not permit the proof to be made. It was shown that the plaintiff had entered into possession under the lease, and had retained possession to the date of the bringing of the suit, and that he had regularly paid his rent to Thrower, who had transmitted it to Mrs. Alexander. The court allowed the plaintiff to show that his business conducted in the rented premises had been profitable until the damage by the erection of the viaduct occurred, but refused to let him show the amount of the profits. Upon the tender of the lease in evidence, it was objected to by the defendant, on the ground that, the lease being under seal and Thrower's agency being created in parol only, its execution was not sufficiently authorized. The court sustained the objection. Apart from the question of the lease, the plaintiff's proof as to the other allegations of the petition was sufficient to make a prima facie case. The written lease from Mrs. Alexander to the plaintiff having been excluded, the court, upon motion of defendant, awarded a nonsuit.

1. Prefatory to the discussion of what we conceive to be the only points raised by the record and necessary to a complete determination of the case in this court, we will take up and dispose of the proposition, insisted upon by counsel for defendant in error, that a leasehold estate for less than five years is not such property as is contemplated in the clause of our Constitution providing that compensation must be paid for property taken or damaged for public purposes. He cites section 3115 of the Civil Code of 1895 to show that in such cases no estate passes out of the landlord to the tenant. This question seems to have been decided adversely to this view in the case of Pause v. Atlanta, 98 Ga. 92, 26 S.E. 489, 58 Am.St.Rep. 290, and in Bass v. West, 110 Ga. 698, 36 S.E. 244. Since this question would involve the construction of a clause of the Constitution of this state, if a direct decision upon it were necessary to the determination of the case, this court would refer it to the Supreme Court for instruction. However, we find no such necessity. The plaintiff in his petition expressly made the injury to this leasehold estate his cause of action, and the defendant, without demurring or otherwise objecting, joined issue, and procured a nonsuit. "The right to recover under the facts alleged is not involved in the decision of such a motion [for nonsuit]. If a plaintiff 'proves his case as laid,' he is entitled to prevail as against a nonsuit." Kelly v. Strouse, 116 Ga. 883, 43 S.E. 280.

2. Counsel for both parties agree, in their briefs and in the argument, that an agent without written authority under seal cannot bind his principal by a written contract under seal and that such a contract, so executed, cannot be ratified by the principal by any act less solemn than a writing under seal. In the light of the uniform decisions of our Supreme Court to this effect, there is no question of law which seems to be more conclusively settled. It is also absolutely immaterial, in the application of the rule, that the contract was of such a nature as not to require a seal to be valid. Civ. Code 1895, § 3002; Rowe v. Ware, 30 Ga. 278; Van Dyke v. Van Dyke, 123 Ga. 690, 51 S.E. 582; Overman v. Atkinson, 102 Ga. 751, 29 S.E. 758; Pollard v. Gibbs, 55 Ga. 46. Therefore the lease in this case stands just as if Mrs. Alexander's name had never been attached to it. It was signed and sealed by Hayes, and under the decisions of our Supreme Court unquestionably constituted an offer on his part to make the contract, but was unilateral and was not mutually binding and enforceable until it was accepted by Mrs. Alexander in the manner contemplated. Sivell v. Hogan, 119 Ga. 167, 46 S.E. 67; Huggins v. S.E. Lime & Cement Co., 121 Ga. 311, 48 S.E. 933; McCaw Mfg. Co. v. Felder, 115 Ga. 408, 41 S.E. 664; Morrow v. Express Co., 101 Ga. 810, 28 S.E. 998; Glessner v. Longley, 125 Ga. 676, 54 S.E. 753; Harrison v. Lumber Co., 119 Ga. 6, 45 S.E. 730; Brown v. Bowman, 119 Ga. 153, 46 S.E. 410. The acceptance contemplated was the granting on her part of a lease of the premises for a term of two years, which, under the statute of frauds--Civ. Code 1895,§ 2693 (5)--and under section 3117, required a writing from her. A careful reading of the cases cited above, as well as of the authorities upon which they are based, will make certain to the mind the proposition that no acceptance less than the one contemplated could make what the law construes to be a mere offer of a contract binding to the full extent of the terms proposed. It is equally well settled by the same cases that, though the contract has never become completed by the...