33 Ga. App. 27 | Ga. Ct. App. | 1924
The evidence in this case not showing that the landlord consented that the original tenant sublet any portion of the rented premises, or that the landlord took any affirmative action to make the subtenant his tenant, or that he released his claim on the original tenant, it is clear, under the principles announced in the first five headnotes, that the relation of landlord and tenant did not exist between the landlord and the subtenant, and that the latter, as such, owed the landlord nothing, although the landlord’s lien attached to the crops grown on the premises rented by the subtenant, and this lien could be enforced by a distress warrant against the original tenant. But admitting that the subtenant, without the consent of the landlord, removed from the rented premises cotton which was grown thereon, and conceding, but not holding, that he was a tenant of the landlord, under the ruling in the 4th headnote, this did not empower the landlord to sue in trover for the cotton grown by the subtenant, or, “waiving counsel for plaintiff that he is entitled to the verdict in his favor because in the fall, and before the subtenant had paid any rent to the tort, to sue for its value in assumpsit.” But it is urged by the original tenant, the subtenant made a “distinct and definite contract” with the landlord that he would pay to the landlord the rent which he had contracted to pay to the original tenant. This contention is denied by the defendant; but granting that he did make such a promise, it was a mere oral promise to answer for the debt of another, and, under the law set out in the 6th headnote, is not binding on him. Counsel for the plaintiff in error cites and relies on the case of Saulsbury v. McKellar, 59 Ga. 302, to support his contention, but the facts of that case clearly differentiate it from this one. This case is more analagous to the case of Worrill v. Barnes, 51 Ga. 404.
Reversed.