Rucker v. Tabor , 1906 Ga. LEXIS 752 ( 1906 )

Lumpkin, J.

(After stating the foregoing facts.) If one party to a continuing contract containing mutual obligations renounces it, the other can immediately treat such renunciation as a breach of. the contract, and sue for the damages he has sustained, or treat it as binding and wait until the time arrives for its performance, in order to give the party who has repudiated the contract an opportunity to comply with its terms. “If, after the attempted renunciation by one party to the contract, the other elects to treat the contract as still binding- and await the time for full performance, it is incumbent upon the party making such electioh to perform such of the obligations as may in the meantime devolve upon him under the terms of the contract.” Smith v. Georgia Loan Co., 113 Ga. 975. The former course was not sought to be pursued here. The plaintiff waited till long after the contract should have been complied with.

Counsel for both parties, in their briefs, treated the contract as one- of rental by the defendant. So treating it, the controlling point in the case is, did the facts constitute a surrender and acceptance in law? According to_the evidence for the plaintiff, the defendant after taking possession abandoned the property to be cultivated under the contract, and said that he did not “see any money in it for him.” Plaintiff did not refuse to receive the property, or notify the defendant that he would hold him liable, but took possession of at least a part of it and relet it, or had it cultivated on shares. This in law amounted to a surrender, and terminated the relation of landlord and tenant. “The general rule is that a reletting by the landlord without the consent of the tenant is a resumption of complete possession, and operates as a surrender by operation of law.” 18 Am. & Eng. Enc. L. (2d ed.) 365, 366. In 2 McAdam on Landlord & Tenant (3d ed.), 1270, it is said: “A surrender of a lease by operation of law may arise from any condition of facts voluntarily assumed by the parties and incompatible with the continued existence of the relation of landlord and tenant between them.” On page 1285-6, it is said: “If a landlord relets the premises, without notice to the tenant that it is on his account, it dispenses with a formal surrender on the part of the tenant.” Such a surrender does not release rent or obligations already matured, but does release the tenant from further rent. Harris v. Dub, 57 Ga. 77; Ledsinger v. Burke, 113 Ga. 74, s. c., 115 Ga. 195; Walls v. Atcheson, 11 E. C. L. (3 Bing.) 228; Schuisler v. Donnell & Ames, 16 Ala. 73, 50 Am. Dec. 168; Rice v. Dudley, 65 Ala. 68; Tully v. Dunn, 42 Ala. 262 (when the tenant failed to take possession at all). Some of the courts hold that if a tenant abandons the property, and the landlord notifies him of a refusal to accept, but that he intends to hold the tenant liable, and rents to another to lessen damages, the tenant is not released, but is liable for the difference in the rents under his contract and under the rerenting, or for loss necessarily arising. Auer v. State, 99 Penn. St. 370, 44 Am. E. 114. Others deny this, unless the tenant expressly or impliedly consents to the rerenting on his account. Welcome v. Hess, 90 Cal. 507, 25 Am. St. Rep. 145; Underhill v. Collins, 132 N. Y. 269; Gray v. Kaufman Dairy Co., 9 App. Div. (N. Y.) 115. The plaintiff, however, does not -bring himself under either rule. Whatever name may be applied to the exact relation created by this contract between the parties, it is covered, in principle, by the foregoing rules of law; and there was no error in granting a nonsuit. Under this view, the ruling admitting certain evidence becomes immaterial.

Judgment affirmed.

All the Justices concur.