McCroskey v. Hamilton

• Decision Date: 02 August 1899
• Citation: 34 S.E. 111,108 Ga. 640
• Parties: McCROSKEY v. HAMILTON et al.
• Court: Georgia Supreme Court

34 S.E. 111

108 Ga. 640

McCROSKEY v. HAMILTON et al.

Supreme Court of Georgia

August 2, 1899

Syllabus by the Court.

1. An agent with general powers has authority to use all the means usual and necessary to the proper transaction of the business intrusted to him. To this end he may, ordinarily, constitute another person his servant for the purpose of doing an act or acts, the performance of which does not involve the exercise of discretion, but merely obedience to the master's orders.

2. Under a lease stipulating for the monthly payment of a specified sum as rent, and that, "should any payment fail to be made at or within thirty days after its maturity the lease may be terminated at the option of" the landlord, a demand for possession of the premises, made immediately after a failure to pay a month's rent, which had been due for more than 30 days, was, in substance, an exercise of such option, although at the time of demanding the rent for that month the rent for the succeeding month which, though due, had not been so for 30 days, was also demanded.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by L. M. McCroskey against J. S. Hamilton and others. From a judgment of nonsuit, plaintiff brings error. Reversed.

Reed & Hartsfield, for plaintiff in error.

D. S Craig and Hamilton Douglas, for defendants in error.

LUMPKIN P.J.

On the 15th of January, 1896, Mrs. McCroskey made a lease to J. S. and K. S. Hamilton of certain realty. It, among other things, stipulated that the tenants were to pay each month a specified sum as rent, and that, "should any payment fail to be made at or within thirty days after its maturity, the lease may be terminated at the option of the party of the first part." The Hamiltons made a default in paying the stipulated rent for a particular month, and as to it were in default for more than 30 days. Thereupon an affidavit was made by one Rustin, who in so doing acted as agent for Mrs. McCroskey, for the purpose of obtaining a warrant to dispossess the tenants. In this affidavit it was alleged that "the said tenants failed to pay the rent now due" on the leased premises, and that they were holding the same over and beyond their term. Accordingly a warrant was issued and placed in the hands of the sheriff, to whom the Hamiltons tendered a counter affidavit, simply alleging that the term for which they had rented the premises had not expired, and that they were not holding over and beyond the same. The papers were returned to the superior court, and the case duly came on for trial. The lease contract was introduced in evidence, and the following facts were proved by the plaintiff: One Girardeau was her renting agent. As such, he leased the property in controversy to the defendants. He collected the rents until default in paying them was made. The plaintiff, shortly after the contract was closed with the defendants; instructed him not to allow the rent to run beyond 30 days without collecting it or getting possession of the premises. She told him, with reference to the 30 days clause in the lease, not to let it run longer, but in case of default to immediately dispossess the tenants. Girardeau, in pursuance of his instructions from Mrs. McCroskey, sent "his bookkeeper, office man, and collector," Rustin, to make a demand for the rent. At that time the rent for two months was due, and, as to one month, had been due for more than 30 days. Rustin demanded the rent for both these months. There was no payment, and he thereupon demanded possession of the premises, which was refused, and the dispossessory warrant was sued out.

At the conclusion of the evidence the defendants moved for a nonsuit. In support of their motion it was insisted (1) that as the first ground for removing the tenants set forth in the plaintiff's affidavit had not been met or denied by the counter affidavit, the sole issue for trial in the superior court was whether or not the plaintiff was entitled to dispossess the defendants under the second ground contained in her affidavit, viz. that the tenants were holding over and beyond their term; and (2) that the plaintiff had failed to establish the truth of this ground. On the other hand, counsel for Mrs. McCroskey contended that the case should be submitted to the jury, in order that she might recover the double rent to which they insisted she was entitled under the statute. The court, being of the opinion that the reasons urged by counsel for the defendants for the granting of a nonsuit were both good, sustained their motion. It will thus be seen that no effect whatever was given to the plaintiff's contention that the tenants should be dispossessed for nonpayment of rent, and under the ruling made by the trial court her allegation as to this matter, which was fully established by evidence, counted for nothing. The plaintiff might have moved to strike the counter affidavit as insufficient in law, but she did not choose to pursue this course; nor did the judge of his own motion decline to try the case on the ground that the counter affidavit was not sufficient to have arrested the progress of the plaintiff's warrant. Both court and counsel dealt with the case as one to be disposed of by a jury, and accordingly the plaintiff submitted evidence to establish both grounds set forth in the affidavit to dispossess. She proved the first, but, as the truth of it was not denied by the defendants, his honor thought she was not entitled to recover double rent unless the evidence warranted a finding in her favor upon the question at issue actually made by the pleadings. Assuming that this was the correct view of the matter, the case turns upon the inquiry, did the plaintiff prove that the defendants were holding the premises over and beyond their term? We think she did. The reasons urged to the contrary may be briefly stated as follows: (1) Rustin was not Mrs. McCroskey's agent, but a mere subagent of Girardeau, and therefore without authority to declare in her behalf a forfeiture of the lease, and, this being so, forfeiture could not result from a subsequent ratification by her of his acts; (2) he was not instructed by Girardeau, his principal, to declare a forfeiture, and, even if he was, did not in fact...