Jenkins v. Smith , 92 Ga. App. 296 ( 1955 )

92 Ga. App. 296 (1955) 88 S.E.2d 533

JENKINS
v.
SMITH.

35715.

Court of Appeals of Georgia.

Decided June 24, 1955.

Charles Van S. Mottola, for plaintiff in error.

Byron H. Mathews, Jr., contra.

CARLISLE, J.

1. "In a lease contract, where there is no stipulation to the contrary, the lessor impliedly warrants that the leased premises shall be open to entry by the lessee at the time fixed for taking possession. But the law does not impose upon the lessor the duty of putting the lessee in possession of the leased premises. It demands only that the possession shall not be withheld when the lessee seeks it under the contract." Browder-Manget Co. v. Edmondson, 7 Ga. App. 843 (1) (68 S.E. 453); Watkins v. Stulb & Vorhauer, 23 Ga. App. 181 (98 S.E. 94); and see Baxley v. Davenport, 75 Ga. App. 659, 662 (44 S.E.2d 388).

2. "When a landlord rents a building and puts a tenant in possession of the premises (with consequent liability for rent) the possession of the premises can not be surrendered by the tenant during the term of the lease, unless the surrender be accompanied by an agreement on the part of the landlord to retake possession. . . There must be either an express agreement to the surrender of possession on the part of the tenant, or such circumstances as compel the conclusion that the landlord consented to retake possession of his property." Lamb v. Gorman, 16 Ga. App. 663 (85 S.E. 981).

3. "The mere taking of the keys to the rented premises by the landlord from a vacating tenant ``will not itself alone operate to establish as a matter of law an implied surrender and acceptance.'" Clark v. Sapp, 47 Ga. App. 91 (2) (169 S.E. 692).

4. "Under a lease of real estate for a term of less than five years, and granting only the usufruct, the tenant cannot sublet the premises or transfer the lease without the consent of the landlord. . . Code § 61-101." Lawson v. Haygood, 202 Ga. 501 (43 S.E.2d 649). And a refusal on the part of the landlord to consent to the tenant's subletting the premises would not constitute a rescission of the lease agreement between the tenant and the landlord where no provision is made for subletting by the tenant.

5. Under an application of the foregoing rules of law to the facts of the present case, a verdict for the plaintiff landlord was demanded under the pleadings and evidence. The defendant admitted in his answer that he had leased the premises from the plaintiff for a period of one year, beginning September 1, 1953, at a monthly rental of $100. From all the evidence and reasonable deductions to be drawn therefrom, it appeared that the defendant had his office equipment and furniture shipped to Valdosta and placed in the house at points which he had indicated. As he was not present in Valdosta during the time his equipment was arriving, he arranged with the plaintiff, who lived next door to the leased premises, to open the house to the deliverymen. Some time after the defendant's equipment had been delivered, and before the defendant opened his office for the practice of medicine in Valdosta, he decided to investigate the possibilities for the practice of medicine in Newnan, Georgia. He so informed the plaintiff, but stated that he would keep the property in Valdosta, as he might be returning there. Sometime during the month of November he finally decided to practice in Newnan, and had his equipment moved out of the property in Valdosta, and the keys to the property were returned to the plaintiff. In December, he, on the demand of the plaintiff, paid the rent due for that month, stating that he still intended to live up to the terms of the lease, but that he wished the house could be rented so as to relieve him of the rent in whole or in part, and requesting that the plaintiff allow him to rent the premises himself to another, even if for only $50 per month, and requesting a reply from the plaintiff within one week. The plaintiff did not reply to the letter until some time in March when he demanded the rent for the months of January, February, and March. Though efforts were made to rent the premises by both the plaintiff and the defendant's agent, the house remained vacant until the end of the term for which the defendant had leased it. The plaintiff and defendant had, it appears therefore, entered into a lease agreement, the defendant had gone into possession, and while he surrendered the premises to the extent that he removed his equipment and returned the keys, he did so with the understanding that he was still to be responsible to the plaintiff for the rent to the end of the term. There was not such a surrender, therefore, as to relieve the defendant of the payments due for rent to the end of the term. The plaintiff's failure to reply to the defendant's letter requesting permission to rent the premises to another, or even the plaintiff's refusal to allow the defendant to sublet the premises, would not work a rescission of the lease agreement.

6. Consequent upon the rulings in the foregoing divisions of this opinion, the trial court did not err in denying the motion for a new trial, which was based on the usual general grounds and one special ground, complaining that, since there were questions of fact for determination by the jury, the trial court erred in directing a verdict.

Judgment affirmed. Gardner, P. J., and Townsend, J., concur.