Hamby & Toomer v. Georgia Iron & Coal Co. , 127 Ga. 792 ( 1907 )

Atkinson, J.

1.. The act of 1897 creating the prison commission authorized the hirer of convicts to sublet the convicts by and with the consent of the commission, provided there was no addir tional expense to the State. Acts of 1897, p. 76. This act was .amended by the act of 1903 (Acts of 1903, p. 66), which provides: '“No lessee of convicts as herein provided for shall sublease any of ■said convicts to any person other than such as shall be approved by .said commission, and only upon such terms as said commission shall prescribe.” This provision contains a negative pregnant, and really declares that a sublease is authorized, provided the terms and the party with whom it is made are satisfactory to the prison commission. Hence when a sublease has been approved by the prison commission, the sublessee is lawfully in control of the convicts. It does not interfere with the contract between the State and the original lessee. He is discharged from no obligation, to the State either as to the payment of the hire or the duty to. see that the convicts are dealt with in accordance with the law. The effect of the sublease is merely to render lawful the possession of some other person than the lessee himself, the lessee remaining liable in all particulars as if no sublease had been made, the sublessee, however, becoming liable for any misconduct on his. part in reference to the manner in which the convicts are dealt with. The State might annul the sublease for misconduct on the part of the sublessee, and require the lessee to take charge of and control the convicts, provided such misconduct was not chargeable to the lessee himself. If the lessee and sublessee were both guilty of acts which would cause a forfeiture of the lease, the State could revoke the lease and take the convicts from the possession of both the lessee and the sublessee. So long as the sublessee discharges, the obligations which he is under to the lessee, as well as those which he is under to the State, growing out of the fact that the convicts are in his possession, he has a legal right to the labor of the convicts in his possession, and this right can not be arbitrarily or capriciously taken away, either by the authority of the State or the lessee during the term of his sublease.

In this case it appears that a lease was made to Hamby & Toomer of 500 felony convicts. With the consent and approval of the prison commission a sublease of 50 of such convicts was made by Hamby & Toomer to Dean Brothers. Hnder this sublease Dean Brothers became chargeable with all of the duties arising under the contract made between them and Hamby & Toomer, and also chargeable with every duty in relation to the management of the convicts which Hamby & Toomer owed to the State. Their right to the control of the convicts was complete. ' Their right to-retain them depended upon the performance of their obligations to Hamby & Toomer and the State. This contract of sublease was transferred to the Pritchett Turpentine Company. It does not appear from the record that the transfer was ever approved by the prison commission. The Pritchett Turpentine Company transferred its interest in the contract to the Georgia Iron & Coal Company. This transfer was approved by the prison commission. There is nothing in the act prohibiting transfers of a sublease, but even if a transfer of a sublease might be irregular, the effect of an approval by the prison commission of a sublease which had been made with the consent of the original lessee is merely the revocation of the former sublease and the substitution of a new sub-lessee who occupies the same relation to the lessee consenting to such an arrangement, and to the State, as the original lessee. That is, it was competent for Iiamby & Toomer and Dean Brothers or the Pritchett Turpentine Company to cancel the lease and to make a new sublease with the Georgia Iron & Coal Company upon the same terms as were contained in the sublease with Dean Brothers and the Pritchett Turpentine Company, or upon any other terms; and the transaction as it appears is in legal effect nothing more nor less than this: the prison commission, by approving the transfer, authorizes the Georgia Iron & Coal Company to assume the relation of sublessee under Hamby & Toomer, and, so far as the State is concerned and Hamby & Toomer are concerned,' the terms and stipulations of the contract made with Dean Brothers become the terms and stipulations of the contract between Hamby & Toomer and the Georgia Iron & Coal Company. The record does not disclose any written consent by Hamby & Toomer to the transfer to the Georgia Iron & Coal Company, but the evidence discloses that it was done with their knowledge and without their disapprobation, and that they participated in the negotiations and the transfer of the convicts to the place where the Georgia Iron & Coal Company placed them at work. Under the record the Georgia Iron & Coal Company occupied unquestionably the relation of sublessee, both as to Hamby & Toomer and the State, for the period of two years specified in the contract between Dean Brothers .and Hamby & Toomer.

The duties imposed upon a lessee of convicts are important and ■onerous, as well as delicate, in their nature. In these duties are involved the protection of the lives and the health of the convicts. The State looks to the lessee for a faithful discharge of these •duties. The contract contains personal features, and therefore a sublessee would have no right to substitute in his place a person who was not satisfactory to the lessee; for the lessee is always responsible to the State for a proper discharge of these duties, no matter who may be the person actually in charge of the convicts. Hence, because of these reciprocal obligations, Dean Brothers would not have the right to transfer their lease to any one without the •consent of Hamby & Toomer, there being no provision in the contract by Hamby & Toomer with Dean Brothers for assignment. Nor would the Pritchett Turpentine Company have such right. But although Hamby & Toomer may not in the first instance have known of the contracts to assign between Dean Brothers and the Pritchett Turpentine Company, and between, the Pritchett Turpentine Company and the Georgia Iron & Coal Company, yet the record discloses that before the latter company took possession •of the convicts, Hamby & Toomer did know of the assignment;— the assignment of the particular lease which they in the first instance had executed to Dean Brothers, — not a mere independent subletting of the convicts for some particular time or service, but the actual, assignment of the lease. The evidence is undisputed that Tierce, the agent of the Georgia Iron & Coal Company, went to the camps at Yaldosta to inspect the convicts about to be turned •over to his principal, and met Mr. Hamby, representing Hamby & Toomer; and, in the conference which ensued, Mr. Hamby “insisted that the Georgia Iron & Coal Company, as assignee of the sublease contract, under which these men were held first by Bean Brothers and then by the Pritchett Turpentine Company, was bound to accept its share of the' crippled.” Here was a direct admission that the lease had been assigned to the Georgia Iron & Coal Company and that Hamby knew of the assignment. Now, with knowledge that the lease itself had been assigned, what acts of acquiescence and of ratification, if any, did Hamby & Toomer do ?

It appears from the record, first, that before the delivery of the convicts, Mr. Hamby, giving the matter his personal attention, met Tierce, the agent of the Georgia Iron & Coal Company, and disputed with him as to whether or not the sublessees under the Dean Brothers lease, the subject of assignment, were bound to take any crippled convicts. It was contended by Mr. Hamby that under that lease the Georgia Iron & Coal Company was “bound to accept its share of the crippled.” After this difference was settled, Tierce went back.and, with Mr. Hamby, selected the convicts which were to be turned over. After the selection, Mr. Hamby asked Tierce how he liked them. After the convicts were delivered to the Georgia Iron & Coal Company Mr. Hamby wrote Tierce a letter stating that he, Tierce, would be furnished by Hamby’s agent with necessary blanks for reports and stamped envelopes, the letter also containing this clause: “The men you receive from Borne will apply on our contract with Mr. Hurt [Mr-Hurt was the president of the Georgia Iron & Coal Company] at that point, which will make your number 26 under that contract. The others you have received will apply on the contract at Bising Fawn, which is the sub-contract from us to Pritchett Turpentine-Compaq.” In accordance with the letter just recited, blanks for reports were sent to the Georgia Iron & Coal Company by the agent of Hamby & Toomer, with request that they be used “in reporting to Hamby &' Toomer all changes that took place among the men that they had under their control leased from Hamby & Toomer.” From and after receiving the convicts in December, 1904-, they were worked by the Georgia Iron & Coal Company in accordance with the terms and stipulations contained in the sublease from Hamby & Toomer to Dean Brothers. It will therefore be seen that Hamby & Toomer not only acknowledged that the contract had been assigned, but dealt „with the last assignee, the Georgia Iron & Coal Company, as if that company were Dean Brothers, the original sublessee, and thereafter recognized the right of the Georgia Iron & Coal Company to the services of the convicts. In the letter which Hamby & Toomer wrote in February, 1905, they recognized the assignment of the contract to the Georgia Iron & Coal Company, and showed a knowledge of the contents of the contract of assignment by the use of these words: “The others you have received will apply on the contract at Bising Fawn, which is the sub-contract from us to the Pritchett Turpentine Company.” In the contract of assignment to the Georgia Iron & Coal Company, Bising Fawn was the place specified for delivery of the convicts to that company. Proof of the foregoing was sufficient to enable the court to find that Hamby & Toomer had knowledge of the assignment to the Georgia Iron & Coal Company of the lease which they had originally executed to Dean Brothers, and that with such knowledge they acquiesced in the taking of the convicts by the Georgia Iron & Coal Company under such assignment, and that their conduct amounted to assent to the same. It was the equivalent of a ratification of the act of assignment. In such ease it will be deemed that Hamby & Toomer assented to the assignment. Not the assignment of a part, but whatever purported to be assigned. The record indicates strongly that Hamby & Toomer actually knew all the contents of the contract of assignment, but even if they did not have actual - knowledge thereof, the matters hereinbefore referred to were sufficient to put them upon inquiry and charge them with knowledge if they did not pursue the inquiry. Having, under such conditions, assented to the assignment, clearly an estoppel arose against Hamby & Toomer from afterwards claiming that the assignment was without their assent, and, for that reason, invalid. There is a complete estoppel against the denial of the fact of assignment of anything which in law was assignable.

The contract between Hamby & Toomer and Dean Brothers contained this stipulation: “The term of this contract is two years from and including April 1, 1904, and the privilege is hereby granted by the parties of the first part and expressly reserved unto the parties of the second part of renewing and extending this contract for a period of three years from, after, and including the 1st day of April, 1906.” A contract for the hiring of personal property, of course, does not raise technically the. relation of landlord and tenant between the parties. But in a contract for the hiring of personal property, the rules governing the relation of landlord and tenant, which .is really only the hiring of land to tenants, might often by analogy be well applied. A convict during his term of service has no right of volition. He is compelled to do service against- his will. Of course, a convict is not property. He is a human being, and the State owes to him the same duty that it would owe to any other human being under the same unfortunate circumstances by which he is surrounded. His labor, however, during his term of service, is a property right which may be made the basis of a valid contract. Georgia Penitentiary v. Nelms, 71 Ga. 355. Applying by analogy the rule which would be applicable if we were dealing with a ease of landlord and tenant, the stipulation above quoted accords a privilege which is very often found in leases of land. Having in a previous portion of this opinion shown that either consent, or estoppel from denying consent, to an assignment of the contract under consideration, which contained reciprocal obligations involving personal trust, rendered the contract assignable, and having shown that the facts were such as to authorize the judge in finding that there was an estoppel, we may deal with the subject now under consideration as if the stipulation for extension of time were really a contract for the lease of land where no obligations in the nature of a personal trust are involved.

It becomes necessary to determine- the question of whether this stipulation is such as to provide for a renewal of the lease, or a mere extension of the time first stipulated in the lease. The consequences which would flow from the construction that it provides for a renewal would be different from those which would flow from construing it as providing for a mere extension. If the stipulation contemplates a new contract at the expiration of the two years, then it would be a renewal, and. the execution of a new lease would be indispensable. In this contingency it would be incumbent upon the lessee to notify the lessor, before the term expired, that he had exercised his option to take a new lease. On the other hand, if the stipulation is to be construed as merely an extension of the time under the- old lease, and no new agreement was contemplated, then, no notice being expressly provided for in the contract, if the lessee merely remained in possession by virtue of the contract after the expiration of the two years, this would bind both the lessee and the lessor to an extension for the additional time stipulated in the lease, and no further notice would be required. Jones on Landlord & Tenant, §337, et seq.; 1 Tayl. Landlord & Tenant (9th ed.), §332; 2 Wood on Landlord & Tenant (2d ed.), 947. In the case of Slater v. Kimbro, 91 Ga. 217, the contract was for the possession of the premises for one year, "with privilege of two years longer at same agreed rate.” It was held that the tenant’s merely continuing- in possession one day after the year had expired bound both' the landlord and the tenant for the time extended, and therefore a warrant to dispossess, sued out maliciously on the first day after the expiration of the year, was sued out without probable cause, and the landlord would be liable in damages to the tenant resulting from such conduct on his part. See also 7 Words & Phrases, 6086, and Insurance Bldg. Co. v. National Bank, 71 Mo. 58-60. The stipulation in question uses both the words renew and .extend, but when it-is construed as a whole, it is manifest that it was intended merely to extend the time upon all the terms and conditions stated in the lease. While the words renew and. extend do not always mean the same thing, still in interpreting a stipulation of the character above referred to, the context must be considered, and the intent of the parties must be arrived at, and this may, under certain circumstances, require that these words shall be given a similar meaning. Jones on Landlord & Tenant, §338. When the provision of the lease is thus construed, no notice was necessary before the expiration of the two years; and the evidence showing that the lessee had continued to retain the convicts in its custody after the expiration of the two years, which would be the equivalent of remaining in possession of land, the extension provided for in the contract became effective, and was binding both upon the lessor and lessee.

But it may be said that Hamby & Toomer have never agreed to an extension, and, as has been said, there is nothing in the record to show any express agreement upon their part, either to the transfer of the lease or the extension. The privilege of extension was a part of the original contract, and a valuable part, which they expressly granted in the first instance to Dean Brothers. When they acquiesced in the. transfer- of the contract as the evidence shows that they did, their acquiescence was not limited to any particular part, and their assent thus given to the transfer extended' to every stipulation in the contract, and, so far as they were concerned, the Georgia Iron & Coal Company stood in the shoes of Dean Brothers. The rule at common law was that a tenant had a right to sublet, unless the lease restricted him from so doing. The rule in Georgia is exactly the opposite: the tenant has no right to sublet, unless the landlord consents. If this rule be applied, the assignment would be effective in this case, for the reason that the consent of Hamby & Toomer to the assignment is to be implied from their conduct. They can not take the benefit of this assignment during the two years and interpose an objection to the assignment so far as it relates merely to the stipulation as to the extension. What has been said will distinguish this case from that ■of Arkansas Smelting Co. v. Belden Co., 127 U. S. 379. In that case there was no consent by the party whose consent was required to an assignment. The decision recognizes that if there had been such consent, the consequences would have been otherwise. While there was no allegation that Hamby & Toomer were insolvent, the allegations of the petition and the evidence before the judge were sufficient to show that the damages resulting to the Georgia Iron & Coal Company from loss o£ convicts would have been irreparable. Hence it follows that there was no abuse of discretion in granting an interlocutory injunction restraining Hamby & Toomer from interfering with the Georgia Iron & Coal Company in their possession of the convicts.

2. The cross-bill of exceptions raises the point that the court erred in not enjoining the prison commissioners from carrying into execution their order based upon the petition of Hamby & Toomer. The point is made that this is really a suit against the State, and therefore an injunction was properly refused. If the order of the prison commission was within the legitimate scope of the powers of that, body and they were exercising merely their discretion, the courts would not interfere with them in the discharge of their duties as public officers and the representatives of the State Southern Mining Co. v. Lowe, 105 Ga. 352; Hudspeth v. Hall, 113 Ga. 4, and cases cited. The effect of the order, however, was to vacate .the sublease which had been approved by them. The prison commission has the power to vacate either a lease or a sublease, for cause, 'but can not, merely at the request of the original lessee, destroy the rights of the sublessees in the property represented by the labor of the convicts in their possession. The facts as they appear in the record show that the commission was not acting at the instance of the State. The order was, therefore, beyond the power of the commission. The prison commissioners, acted under the theory that they were to deal only with the lessee and had no concern with the controversies between a lessee and a sublessee. While their dealing is with the lessee, and they look to the’lessee for the hire, and they look to the lessee for the discharge of the duty which the law imposes upon all concerned in the work of convicts, still, as has been shown in a previous portion of this opinion, when the lessee has done nothing to work a forfeiture of his lease, and the sublessee has done nothing to work a forfeiture of his sublease, the State receiving its hire and the convicts receiving the treatment which the law requires should be granted to them by those in whose charge they are, the prison comkdssion has no right, merely at the instance of a'lessee, to take from'the possession of a sublessee convicts which are lawfully in his possession and to which he is entitled as against the rights of the lessee. The order of the prison commission was therefore unauthorized. No right of the State had been violated. No duty to the convicts had been broken. Nothing had transpired which gave the commission jurisdiction of the matter. An injunction should have been granted restraining the further execution of the order. The prison commissioners were confronted with a condition which was unusual and without precedent; and while we have not been able to concur in the result reached by them, there is no criticism of them.

Judgment, on main Hill of exceptions, affirmed; on cross-Hill, ■reversed.

All the Justices concur, except Fish, C. J., absent.