Marshall v. Hicks , 159 Ga. 871 ( 1925 )

Atkinson, J.

1. Where a tenant sought to recover from a landlord damages for his eviction before the expiration of his term and for two fifths of the value of improvements placed upon the premises by him, it was erroneous for the court to give to the jury an instruction which authorized them to find in favor of the tenant the full value of the improvements placed on the premises by the defendant, as such charge was not authorized by the pleadings of the defendant, in which he sought only to recover two fifths of the value of the improvements.

2. A parol contract for the rent of lands for a period of five years is invalid, and will not have the effect of creating a tenancy for longer than one year (Civil Code (1910), § 3693), in the absence of such part performance of the contract as will take it out of the statute of frauds, as provided in the Civil Code (1910), § 3223 (3).

(a) The erection of improvements on the rented premises by the tenant will not amount to such part performance where such improvements were not made in pursuance of the rental agreement that the tenant should make them. The erection of such improvements by the tenant as an independent act, not a part of the contract, does not become a part performance thereof, merely because the doer of the act was led so to act by his belief or understanding that the parol contract would be performed by the other party. Graham v. Theis, 47 Ga. 479 (2); Simonton v. Liverpool &c. Insurance Co., 51 Ga. 77 (2); Brunswick Grocery Co. v. Lamar, 116 Ga. 1 (42 S. E. 366); Baucom v. Pioneer Land Co., 148 Ga. 633 (2) (97 S. E. 671); Bentley v. Smith, 3 Ga. App. 242 (3) (59 S. E. 720). The ruling stated above does not conflict with the decision in Petty v. Kennon, 49 Ga. 468, which involved a case in which the contract expressly provided for the doing of the act that was relied on to take the contract out of the statute of frauds.

3. Applying the above principles, the judge erred in his instructions to the jury, and a new trial is required.

Judgment reversed.

All the Justices concur. Mundy & Watkins, for plaintiffs. John K. Davis, for defendant.