Deriso v. Castleberry , 202 Ga. 174 ( 1947 )

1. The remedy of injunction is available to restrain a landlord from interfering with the possession of his tenant during the tenancy, when the damages are of such a nature as to be incapable of accurate computation. Anthony Shoals Power Co. v. Fortson, 138 Ga. 460 (4) (75 S.E. 606); 32 Am. Jur. 227, § 243.

2. A contract creating the relation of landlord and tenant for any time not exceeding one year, though made before the year begins, may be by parol. Code, § 61-102; Steininger v. Williams, 63 Ga. 475.

3. The grant or denial of a temporary injunction rests in the sound discretion of the judge, according to the circumstances of each case (Code, § 55-108); and, where the evidence is conflicting, his decision will not be controlled by this court unless it is apparent that he has abused the discretion which the law gives him. Sapp v. Ritch, 169 Ga. 33 (3) (149 S.E. 636); Traylor v. Peoples Bank of Carrollton, 179 Ga. 895 (3) (177 S.E. 702); Jones v. Lanier Development Co., 188 Ga. 141, 145 (2 S.E.2d 923). In the instant case, the judge was authorized to find from the evidence, though conflicting, that the tenant-lessee made an offer to rerent the farm in question for the year 1947 upon the same terms as those for the year 1946; that the owner-lessor agreed to either accept or reject the offer by October 1, and to notify the tenant by that date in the event he desired to reject the offer; and that the tenant properly concluded from the lessor's silence that he had accepted the offer to continue the relation of landlord and tenant, according to pre-existing terms, for the year 1947.

4. The lessor in the instant case having assumed a duty to notify the tenant on or before October 1, 1946, in the event he did not wish to accept the tenant's proposition to rent for 1947, and the tenant having relied upon his silence as an acceptance of the tenant's offer to the extent that the tenant would suffer substantial injury, the lessor would be thereafter estopped to deny the existence of a rental contract. 12 Am.Jur. 533, § 40; 17 C. J. S. 375, § 41 (e).

5. Since it can not be said as a matter of law that the judge abused the discretion vested in him in granting the temporary injunction complained of, his decision will not now be controlled by this court.

Judgment affirmed. All the Justicesconcur.

No. 15752. APRIL 19, 1947. A. W. Castleberry brought suit for injunction against J. G. Deriso and T. J. and H. J. Whitaker. He alleged, briefly, that he had, for the past several years, rented and occupied a certain described farm owned by the defendant Deriso; that he had a definite oral contract to rent it for 1947 and was then residing on and making preparations for its cultivation in 1947; that the Whitakers, claiming to act under an agreement with Deriso, were undertaking to do certain farm work on the land, and had refused to discontinue such work, and to remove their equipment from the land, which operations seriously interferred with the plaintiff's rights; that he had no adequate remedy at law, and an injunction should be granted to prevent a multiplicity of suits and irreparable damage. The defendants, by answer and cross-action, denied that they were interfering with the plaintiff's rights and also denied the existence of any rental contract for 1947. They prayed that the plaintiff be enjoined from interfering with the cultivation of the pecan orchard on the farm; and that the right of possession to all the land in controversy be decreed to be in Deriso as of January 1, 1947.

At the interlocutory hearing, the plaintiff testified: that he rented the farm from Deriso, by oral contracts, for the years 1944, 1945, and 1946; that the rent was paid according to the number of acres actually cultivated; that in June, 1946, he had the following conversation with Deriso concerning the 1947 rental: "``Jesse, if you are intending making any changes in 1947, I want you to tell me.' He said, ``Pete, I have no idea of making any changes in 1947.' I said, ``If you do, you be certain you let me hear from you by the first day of October;' and he said, ``I will.'" That the plaintiff did not hear from Deriso until October 24, when he received a letter notifying him that other arrangements had been made for 1947; that after October 1, he made preparations for the 1947 cultivation by contracting for tenant help and by purchasing certain farm equipment; that he also contracted for the rental of his own farm for the year 1947; that the pecan orchard was released from his 1946 contract because of labor shortages.

J. G. Deriso testified that he had a conversation with the plaintiff in June, 1946, concerning a 1947 rental contract, but that he told the plaintiff that he had not then made up his mind and would let him know as early as possible, and in plenty of time.

The court granted an interlocutory injunction, as prayed, against the defendants for the land described in the petition, except as to the pecan orchard and any other land not actually cultivated by the plaintiff in 1946; holding that Deriso had assumed an obligation to notify the plaintiff by October 1 of any change which he desired to make respecting their prior relation of landlord and tenant, and not having done so, the plaintiff had a right to conclude that no change would be made. To this judgment the defendants excepted.