Rucker v. Tabor

• Decision Date: 13 December 1906
• Parties: RUCKER. v. TABOR.
• Court: Georgia Supreme Court

127 Ga. 101

56 S.E. 124

RUCKER.

v.TABOR.

Supreme Court of Georgia.

Dec. 13, 1906.

Landlord and Tenant—Surrender of Lease —Acceptance.

If an owner of land entered into a contract with another, by which the latter was to take possession of the land, place hands upon it, and have it cultivated on certain agreed terms, involving mutual obligations as to furnishing stock, feed for them, etc., and under which the landowner should receive, by being applied to his use, after certain deductions, one-half of the crop raised, and if, after taking possession, such person removed the hands from the land and abandoned it, and thereupon, without notice to him of an intention to do so, or to hold him liable, the owner rented a portion of it to others, placed them in possession, and received rents from them, this amounted to a surrender and acceptance, and, under such facts, in a suit by the landowner against such other person, a nonsuit was properly granted.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant §§ 366, 367.]

(Syllabus by the Court.)

Error from Superior Court, Elbert County; H. M. Holden, Judge.

Action by J. H. Rucker against T. O. Tabor. Judgment for plaintiff, and defendant brings error. Affirmed The evidence for the plaintiff showed as follows: He owed a debt to a firm of which the defendant was a member. He agreed with the defendant that the latter should cultivate certain lands of the plaintiff, each to receive half of the crops, advances made by the defendant for the plaintiff being deducted from the plaintiff's share. The plaintiff was to furnish the land and houses for the hands. Plaintiff's share was to be applied to his indebtedness to the firm. Defendant put certain hands on the place and commenced work, but afterwards moved them away and abandoned the land. When asked about it, he said he did not "see any money in it for him." Plaintiff placed tenants on part of the land defendant had rented and received rent from them for the year. The court granted a nonsuit, and the plaintiff excepted.

Z. B. Rogers, for plaintiff in error.

Van Duzen & Tutt, for defendant in error.

LUMPKIN, J. (after stating the foregoing facts). If one party to a continuing contract containing mutual obligations renounces It, the other can immediately treat such renunciation as a breach of the contract, and sue for the damages he has sustained, or treat it as binding and wait until the time arrives for its performance, In order to give the party who has repudiated the contract an opportunity to comply with its terms. "If, after the attempted renunciation by one party to the contract, the other elects to treat the contract as still binding and await the time for full performance, it is incumbent upon the party making such election to perforin such of the obligations as may, in the meantime, devolve upon him under the terms of the contract." Smith v. Georgia Loan Co., 113 Ga. 975, 39 S. E. 410. The former course was not sought to be pursued here. The plaintiff waited till long after the contract should have been complied with.

Counsel for both parties, In their briefs, treated the contract as one of rental by the defendant. So treating it, the controlling point in the case is, did the facts constitute a surrender and acceptance in law? According to the evidence for the plaintiff, the defendant, after taking possession, abandoned the property to be cultivated under the contract, and said that he did not "see any money in it for him." Plaintiff did not refuse to receive the property, or notify the defendant that he would hold him liable, but took...