Williams v. Stark, 31696.

• Decision Date: 13 September 1947
• Docket Number: No. 31696.,31696.
• Citation: 44 S.E.2d 300
• Parties: WILLIAMS. v. STARK.
• Court: Georgia Court of Appeals

44 S.E.2d 300

WILLIAMS.

v.STARK.

No. 31696.

Court of Appeals of Georgia,

Division No. 1.

Sept. 13, 1947.

Syllabus by the Court.

1. A proceeding under the provisions of the Code, § 61-301, to evict one alleged

to be in possession of lands as a tenant cannot be maintained unless the relationship of landlord and tenant actually exists between the parties; and under the evidence in this case, the jury was authorized to find that such relationship existed between the parties.

2. The court erred in refusing the request to charge set out in ground 4 of the motion for a new trial.

3. There being evidence on behalf of the defendant to authorize the jury to find that the lease contract as originally entered into was for a period of a year, and that after the expiration of the year the tenant continued in possession of the premises and continued to pay rent under the terms of the contract, and continued to live on from year to year, paying rent under the terms of the original lease contract, as modified by an increase in rent, it was error to fail to charge the jury, as requested by the defendant, that under such a state of facts the law implies a renewal of the original lease contract for a year, and that a tenancy from year to year is created.

4. Special grounds 7 and 8 of the motion for a new trial show no error.

Error from Superior Court, Jackson County; Clifford Pratt, Judge.

Dispossessory warrant proceeding by E. C. Stark against A. W. Williams. To review an adverse judgment, defendant brings error.

Reversed.

Kenyon, Kenyon & Gunter, of Gainesville, for plaintiff in error.

E. C. Stark, of Commerce, for defendant in error.

SUTTON, Chief Judge.

E. C. Stark sued out a dispossessory warrant proceeding against Mrs. A. W. Williams, based on the ground that the defendant, as his tenant, was holding a certain house over and beyond the term for which the same was rented to her. The defendant filed a counter affidavit in which she denied that the relationship of landlord and tenant existed between her and the plain tiff and that she was holding over and beyond her legal term. The case proceeded to trial, both sides introduced evidence, and the jury returned a verdict for the plaintiff for possession of the premises and for double rent. The defendant's motion for a new trial, as amended, was overruled, and she excepted.

1. The defendant contends that the judge erred in overruling the general grounds of the motion for a new trial for the reason that it did not appear from the evidence that the relationship of landlord and tenant existed between the parties. Under the provisions of the Code, § 61-301, before the plaintiff is entitled to recover, he must show that the defendant is in possession of the premises as his tenant. Rad-cliffe v. Jones, 46 Ga.App. 33(1), 166 S.E. 450; McHan v. McHan, 39 Ga.App. 632, 147 S.E. 903, and citations. The plaintiff testified that he showed the house to the defendant with a view to renting it and that after she had seen the house, she stated "I will take the house" and that he rented her the house and gave her the keys to it; that she paid the rent by checks signed "Williams Dress Shop" with her name written underneath; that he always collected the rent from her and gave her notice when he increased the rent and when he demanded possession of the premises. It appeared that the plaintiff, as an attorney at law, prepared the papers when defendant's husband purchased the business operated as Williams Dress Shop prior to the time the house was rented. There was evidence on behalf of the defendant to the effect that the contract of rental was entered into between the defendant's husband and the plaintiff, but this evidence was in sharp conflict with that of the plaintiff.

While a married woman who is living with her husband cannot be held liable on an account for necessaries furnished her, unless she expressly contracted or signified that she herself and not her husband would assume the obligation (Arnold v. Brown, 42 Ga.App. 228(1), 155 S.E. 532), a wife may bind herself individually for the necessities of life furnished to the family, where the credit is extended to her individually and exclusively. Bellv. Rossignol, 143 Ga. 150, 84 S.E. 542, L.R. A.1915D, 1184, Ann.Cas.l917C, 576; Georgia Grocery Co. v. Branson, 24 Ga.App. 484, 101 S.E. 130. "Lodgings or a dwelling abode for the family unquestionably constitutes a necessity of life, and an obligation to pay the rent due thereon or therefor is an obligation to pay for a necessity of life for which the wife may become individually liable by express contract." Butler v. Godley, 51 Ga.App. 784, 785, 181 S. E. 494, 495. Under the evidence in this case, the jury was authorized to find that the contract of rental was between the plaintiff and the defendant individually, and that the relationship of landlord and tenant existed between them, and the court did not err in overruling the general grounds of the motion for a new trial.

2. Complaint is made in ground 4 of the motion on the refusal of the trial judge to give the following request in charge to the jury: "I charge you, gentlemen of the jury, that the testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him, when it is self-contradictory, vague, or equivocal. And unless there be other evidence tending to establish his right to recover, he is not entitled to a finding in his favor, if that version of his testimony the most unfavorable to him shows that the verdict should be against him." The request stated a sound principle of law. In this connection, see Liberty National Life Insurance Co. v. Mitchell, 73 Ga.App. 673, 675, 37 S.E.2d 723; and citations; Davis v. Akridge, 199 Ga. 867(2), 36 S.E. 2d 102. One of the issues in the present case was whether or not the contract of rental was for a term of a year, as contended by the defendant, or by the month, as contended by the plaintiff....