5 Ga. App. 211 | Ga. Ct. App. | 1908
Bailey brought suit against Hooks, to enforce a written contract arising on the following state of facts: Bailey had leased from Mrs. Elmira J. Horne what was known as the Joyner House, in the city of Hawkinsville, Georgia, and had also leased from her what was known as an annex to the hotel. This lease contract, for a stipulated consideration, was transferred by Bailey to Hooks, and Hooks transferred the lease to one Powell. During Powell’s occupancy of the premises, the owner, Mrs. Horne, through her agents, collected from him the rent. When Bailey originally leased the premises from Mrs. Horne, he gave to her a series of notes for the rent, which were deposited in the Planters’ Bank of Hawkinsville for collection. When the premisés were sublet by him to Hooks, and by Hooks to Powell, no new rent notes were given, but each succeeding lessee assumed the payment of the original rent notes from Bailey to Mrs. Horne; and when they became due, they were collected through the bank where, as above stated, they had been deposited. No objection was made by Mrs. Horne to the subletting by Bailey to Hooks or by Hooks to Powell, but her agent collected the rent directly from Powell, in the manner above indicated; and, during the tenancy of Powell, upon notice to Mrs. Horne that certain repairs were needed upon the premises, Powell was notified by her to make the needed repairs, and deduct the cost from the rent. The foregoing arrangement went on without objection, and without any trouble, until Powell, the tenant, filed a voluntary petition in bankruptcy and was- adjudicated a bankrupt. Bailey was thereafter, when the rent fell due, called upon by Mrs. Horne to pay the same, and he in turn called upon his tenant, Hooks, to pay the rent according to the terms of his contract. This Hooks refused to do, and Mrs. Horne sued out a distress warrant against Bailey. Bailey, at the request of Hooks, defended the distress warrant, by counter-affidavit, and notified Hooks to appear and assist in the defense. This Hooks did not do, by himself or attorney, and he did not in any manner assist Bailey in the defense set up to the distress warrant; and
It will be seen from the foregoing statement of undisputed facts that the only question for this court to decide is, as to whether the conduct of Mrs. Horne, the owner of the premises, amounted to an election on her part to make the subtenant, Powell, her tenant, thereby releasing Bailey from his contract of tenancy; for, of course, if her conduct did amount to such substitution, it would have the effect to release Bailey from his contract, and, consequently, Hooks from his contract with Bailey. The extent of the evidence illustrative of'this point is that Mrs. Horne, through her agent, collected the rent from Powell; but this act must be taken in connection with the further facts that the original rent notes executed by Bailey to her had been deposited in the bank for col