45 Ga. App. 479 | Ga. Ct. App. | 1932
Lead Opinion
On May 1, 1923, Peter Pappas and,J<dm Andros leased to Williams Clothing Stores Inc. a store building in Macon for the term of ten years. At that time the building was owned jointly by Pappas and Andros, but on January 12-, 1927, Andros sold his interest in the building to Pappas and transferred to Pappas his right and interest in the rent contract. The Williams Clothing Stores paid the rent until September 6, 1929, and on that date transferred and assigned its lease to Kaufman Brothers & Company Inc., the plaintiff in error. Kaufman Brothers & Company occupied the building as a place of business until sometime in September, 1930, and paid the rent from the time of the assignment of the lease through October, 1930, but refused to pay rent for any time thereafter. Pappas, individually and as successor in title to Andros, levied a distress warrant for rent for the months of November, December, and January, and the defendant gave bond. The judge of the city court of Macon, presiding without the intervention of a j’ury, rendered j'udgment in favor of Pappas. Kaufman Brothers & Co. made a motion for a new trial, which was overruled, and the movant excepted.
The claim “in defendant in error’s distress warrant is not questioned as to amount.” The controlling question in the case is whether or not there was a mutual understanding and election between Pappas and Kaufman Brothers & Co. that the relation of landlord and tenant existed between them. There is evidence to show that Kaufman Brothers & Co., after they ceased to do business in said store, retained the keys to the store, kept fixtures there, went in and out of the store, and used the windows of the store to direct customers to their new place of business. There is also ample
The amendment to the motion for a new^ trial is but an amplification of the general grounds. The evidence amply supports the verdict and judgment, and the court properly overruled the motion for a new trial.
Judgment affirmed.
Rehearing
ON REHEARING.
It is true, as stated in the motion for a rehearing,
In our opinion, the evidence discloses that the landlord had taken an affirmative action which showed that he had elected to ’make the subtenant his tenant. The evidence, together with the legal inferences arising therefrom, authorized the judge (sitting without the intervention of a jury) to find that during the life of the lease, and while the subtenant was in possession of the premises, an agent for the subtenant, and acting therefor, verbally requested the landlord to release the subtenant from future rents and offered to pay him $1300 for such a release, and that the landlord promptly refused to grant such a release, and stated in substance that he would look to the subtenant to pay the specified rents. In all events, this and other evidence raised an issue of fact upon the controlling question in the case, and the trial judge did not err in rendering judgment in favor of the landlord.
Concurrence Opinion
concurring specially. I think the judgment of affirmance in this case is correct under the principle of law that Kaufman Brothers & Company as transferee of the lease was liable because the leasehold interest was vested in it, and liability to pay rent was a covenant running with the land. Harms v. Entelman, 21 Ga. App. 295 (94 S. E. 276), and cit.; Mallette v. Hillyard, 117 Ga. 423 (43 S. E. 779). The principles of law governing a subtenant and a transferee of the lease are different. See Potts-Thompson Liquor Co. v. Potts, 135 Ga. 451, 457, 458 (69 S. E. 734), and cit.