Schachtbr v. J. T. Tuggle Co

• Decision Date: 24 January 1911
• Docket Number: (No. 2,628.)
• Parties: SCHACHTBR. v. J. T. TUGGLE CO.
• Court: Georgia Court of Appeals

70 S.E. 93

8 Ga.App. 561

SCHACHTBR.

v.J. T. TUGGLE CO.

(No. 2, 628.)

Court of Appeals of Georgia.

Jan. 24, 1911.

(Syllabus by the Court.)

1. Landlord and Tenant (§ 209^*)—Liability fob Rent—Subleasing of Premises.

Where a lease provides that the tenant may assign the lease or sublet the premises without the consent of the landlord, an exercise of this privilege does not relieve the original tenant from his primary liability for the rent.

[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. §§ 832-834; Dec. Dig. § 209.*]

2. Landlord and Tenant (§ 109*)—Renting of Premises—Rescission of Contract —Accepting Keys from Tenant.

For a landlord to receive the keys from a tenant or an undertenant, who has vacated the premises, prior to the expiration of the time set in the lease, does not necessarily result in a rescission of the contract of renting. It depends on the circumstances. In the case at bar there was evidence from which the jury were authorized to find that no such rescission was ever effected.

[Ed. Note.—For other cases, see Landlord and Tenant. Cent. Dig. § 365; Dec. Dig. § 109.*]

(Additional Syllabus by Editorial Staff.)

3. Landlord and Tenant (§ 209*)—"Substitution of Tenants"—Necessity fob Contract.

A "substitution of tenants" does not necessarily take place merely because the landlord receives payment of rent from an undertenant, to whom the original tenant has subleased the property; but it requires a contract, express or implied, to bring about such a substitution.

[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. § 832; Dec. Dig. § 209.*]

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action between Joseph Schachter and the J. T. Tuggle Company. From the judgment, Schachter brings error. Affirmed.

R. J. Jordan, for plaintiff in error.

T. O. Hathcock, for defendant in error.

POWELL, J. Even where there is no provision for the subletting of the premises, a substitution of tenants does not necessarily take place merely because the landlord receives the payment of the rent from an undertenant, to whom the original tenant has subleased the property. It requires a contract, express or implied, to bring about a substitution of tenants. Cuesta v. Goldsmith, 1 Ga. App. 48, 57 S. E. 983. "Where the lease contains an express agreement or covenant by the lessee to pay rent, he remains liable for rents to accrue, though he assigns the lease. And this liability of the lessee is not affected by the fact that the landlord accepts payment of the rent from the assignee, nor by the fact that the landlord assents to the assignment." 18 Am. & Eng. Encyc. Law (2d Ed.) 293, and cases cited in Cuesta v. Goldsmith, supra. In the present case the original tenant agreed to pay the rent, and there was an express agreement that he might sublet the premises without the landlord's consent. Hence for the landlord's agent to accept payment from the undertenant did not,...