51 Ga. App. 784 | Ga. Ct. App. | 1935
Lead Opinion
The plaintiffs brought suit for rent against a hus
A wife may bind herself individually for necessities of life furnished to the family. Bell v. Rossignol, 143 Ga. 150 (84 S. E. 542). As where the credit is extended to the wife individually and exclusively. Georgia Grocery Co. v. Brunson, 24 Ga. App. 484 (101 S. E. 130); Oliver v. Webb, 12 Ga. App. 216 (76 S. E. 1081). 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. Therefore a covenant to pay rent in a lease made by a married woman is binding upon her separate estate. See 30 C. J. 602, 922, §§ 142, 626. The lease contract on which it is sought to hold the wife liable in this case was executed by the wife as lessee, and by a named realty company as agent for a certain apartment building, as lessor; and the petition shows that such apartment building was owned by the plaintiffs. The wife demurred on the ground that the petition did not show that the realty company was agent for the owners and acted as such in executing this lease. We think that this point is not well taken, because the lease contract and the petition show that the real-estate company was agent of the owners of a certain apartment building, and that the plaintiffs were the owners of this building.
The plaintiffs’ petition was also demurred to on the ground that
The fact that this lease also provided that “The tenant does covenant and agree to give the landlord, or his agent, not less than three months notice in writing of his intention to give up the premises at the end of this lease prior to the expiration thereof, or at the end of any renewal or renewals thereof; otherwise the lease will be continued in force for a year from its expiration, and from year to year until such notice is given; the landlord to have the privilege of cancelling this lease by giving the same notice,” does not make it a lease for longer than a year, under the facts of this case. The premises were occupied for less than twelve months, due notice being given before the expiration of the first year that the tenant did not intend to keep the premises for another year. The plaintiffs brought this suit to recover the rent due for the last six months of the first year. The fact that this lease provided that it would be automatically renewed from year to year in the event the tenant did not give the notice required to the contrary did not, in so far as this case is concerned, make it a lease for longer than one year. Henderson v. Touchstone, 22 Ga. 1; Burney v. Ball, 24 Ga. 505 (4); Alderman v. Chester, 34 Ga. 152 (2); Springfield Fire & Marine Ins. Co. v. Price, 132 Ga. 687, 697 (64 S. E. 1074); Young Men’s Christian Asso. v. Estill, 140 Ga. 291, 294 (2) (78 S. E. 1075, 48 L. R. A. (N. S.) 783, Ann. Cas. 1914D, 136). Moreover, the petition does not affirmatively show that the plaintiffs’ real-estate agent did not have written authority to execute such a lease contract in their behalf; and the rule is that “Where a contract is of a kind required by the statute to be in writing, the presumption is that it was in writing.” Allen v. Powell, 125 Ga. 438 (54 S. E. 137). Kiser Co. v. Padrick, 30 Ga. App. 642 (118 S. E. 791); Williamson v. Calhoun, 49 G.a. App. 631 (2) (176 S.
The husband is not liable for the rent simply because the same constitutes a necessity of life for his family and because he is legally bound to support his family and provide them with the necessities of life, where it appears under the allegations of the petition that the wife expressly contracted with the landlord to pay the rent for the dwelling abode of the family and that the wife entered into a written lease contract with the landlord to that effect. Goodson v. Powell, 9 Ga. App. 497 (71 S. E. 765); Mitchell v. Treanor, 11 Ga. 324 (56 Am. D. 421); Bell v. Rossignol, supra; Connerat v. Goldsmith, 6 Ga. 14; Rushing v. Clancy, 92 Ga. 769 (19 S. E. 711); Manley v. Chamberlin-Johnson-DuBose Co., 41 Ga. App. 31 (151 S. E. 676). Under the allegations of the petition the husband was not liable for this rent.
In order to bind the promisor, any promise to answer for the debt of another must be in writing, signed by the party to be charged therewith, or some person by him lawfully authorized. Code of 1933, § 20-401(2); Few v. Hilsman, 18 Ga. App. 207 (89 S. E. 79); Bedingfield v. Lamb, 19 Ga. App. 486 (91 S. E. 793). In order to ,biud the promisor, the written promise of one who undertakes to pay the debt of another must contain a clear statement of the agreement, indicate knowledge of the amount promised to be paid, and show who is the promisee as well as the promisor. Johnson v. Rycroft, 4 Ga. App. 547 (61 S. E. 1052). The agreement may be gathered from letters written by the promisor. Borum v. Swift, 125 Ga. 198, 202 (53 S. E. 608); Brooke v. Cunningham, 19 Ga. App. 21 (90 S. E. 1037), and cit. “A writing relied on to satisfy that provision of the statute of frauds, which requires a promise to pay the debt of another to be in writing, must either itself or in connection with other writings identify the debt which is the subject of the promise, without the aid of parol evidence.” Pearce v. Stone Tobacco Co., 125 Ga. 444 (54 S. E. 103). Accordingly, the letter of the defendant husband to the plaintiffs, written after the rent sued for had become due and payable, stating: “Your letter of September 28th, was forwarded to me here. I wish to state in reply that I had a very frank talk with Mr. Brown relative to my rent, and assured him that as soon as my share of the
The demurrer on the ground that the petition failed to show that the court had jurisdiction of the person of the defendants should have been sustained. Coney v. Horne, 93 Ga. 723 (20 S. E. 213); Weatherly v. Southern Co-operative Foundry Co., 111 Ga. 826 (36 S. E. 59); While v. A., B. & A. R. Co., 5 Ga. App. 308 (63 S. E. 234); Wallace v. Southern Express Co., 7 Ga. App. 565 (67 S. E. 694). While this is true, still it is a defect that may be cured by amendment.
The exception to the action of the court -in sirstaining the demurrer of the plaintiffs to a portion of ,the answer of the defendant wife can not be considered by this court, under the ruling in Turner v. Camp, 110 Ga. 631 (2) (36 S. E. 76).
For the reasons above stated, the court erred in overruling the defendants5 demurrers.
Judgment reversed.
Concurrence Opinion
concurring specially. I concur specially in the judgment of reversal. I am of the opinion that under the allegations in the petition the wife in signing the contract, which was
Rehearing
ON MOTION ROE REHEARING.
It is contended by counsel for defendants in error, in the motion for rehearing, that this case is now moot. This question was brought to the attention of the court prior to the decision of this case, and for this reason the decision was delayed for some time; and a rule nisi was issued, calling upon the plaintiffs in error to show cause why the writ of error should not be dismissed on the ground that the case had become moot. The decision was rendered after a consideration of the response to the rule nisi. In this response it appeared that this case, after the overruling of the demurrers to the petition, to which direct exception was taken to this court, proceeded to final judgment, that a