Sikes v. Carter

30 Ga. App. 539 | Ga. Ct. App. | 1923

Bell, J.

(After stating the foregoing facts.)

While the agent exceeded his authority in his agreement in regard to the improvements, “the principal cannot ratify in part and repudiate in part; he must adopt either the whole or none ” Civil Code of 1910, § 3593. That he has ratified the contract in part conclusively appears in the assignment of error first mentioned in the statement of facts. He insists in the record that rent should be paid not at the rate of $7 per month, the price-which he named to his agent, but at $10 per month, which his agent and the tenant agreed to, upon the condition regarding the improvements. The landlord cannot solemnly claim that rents should be paid him at the higher figure, without becoming bound to all of the terms and conditions upon which his agent and the tenant agreed, resulting in fixing the rent at that price. If anything is said to the contrary in McMichen v. Brown, 10 Ga. App. 506 (73 S. E. 691), it is unsound, and cannot be followed. We think that the landlord is bound to the agreement in regard to the improvements, and that the tenant is entitled to all the rights under that agreement which would exist if he had dealt originally with the landlord himself.

Of course, if an owner of land shall find that another has entered and made improvements under an agreement which the agent of the former had made without authority, the owner is not bound if he avoids a ratification. It might be that in his judgment the property had been damaged rather than improved, or that for other reasons he was unwilling to abide by the agreement. The question of the remedy by which the owner may obtain relief in a case of that kind is not now before us for decision. We are satisfied, for the reasons above stated, that the plaintiff in the case at bar must as a matter of law be held to have ratified the agreement in whole as made by his agent.

Beferring only to the items of improvements to which the agent assented, and excluding the others, their cost, by the testimony of: Carter, was not less than $132, and was estimated by no other witness to be less than $124. At $10 per month it would require more than a year for the rents to repay for this expense, and it is readily perceived, under any view of the evidence, that the contract covered a period of more than a year. The minimum duration is thus made certain, though the contract was otherwise silent in regard to the time when the tenancy should terminate. “ Contracts creating the relation of landlord and tenant for any time not exceeding one year may be by parol, and if made for a greater time, shall have the effect of a tenancy at will.” Civil Code (1910), § 3693. The contract was in parol, and therefore, under the provisions of this section, created a tenancy at will. Under the nature of the contract, the fact of the making of the improvements does not alter the character of the tenancy, but operates only to estop the landlord from terminating the tenancy by the usual two months’ notice (Civil Code, § 3709), without restoring or offering to restore the status, until the tenant shall have occupied the premises for a time sufficient for the rentals to offset'or satisfy the expenses incurred. The contract was still in parol, and, being for more than a year, the code says it creates a tenancy, at will. Petty v. Kennon, 49 Ga. 468.

'It is 'provided in § 3708 of the code that where no time is specified for the termination of the tenancy, the law construes it to be for the calendar year, and it is contended by the plaintiff in error that this section is applicable to this case. While it is true that no time was specified for the termination of the tenancy, the principle invoked cannot be applied, for the reason that by necessary implication the agreement provided for a duration in excess of a year.

From what we have said it follows that the court did not err in giving in charge the principle of, § 3709 of the code providing that “two months notice is necessary from the landlord to terminate a tenancy at will.” The record discloses no compliance with this section, and for this reason the finding was demanded that the warrant could not be maintained.

Since the verdict in favor of the defendant was the only one which could lawfully have been rendered, any error in the other charge complained of, even if existing, would be harmless and immaterial.

The motion for a new trial was properly overruled.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.