Garner v. Byard

23 Ga. 289

• Court: Supreme Court of Georgia
• Decided: August 15, 1857
• Status: Published

Opinion

By the Court. —

Lumpkin J.

delivering the opinion.

Amongst other things, the Court charged the jury, in this case, that the defendant, Gamer, had no right to sub-let the premises, for the rent of which the note was given, to a stranger, without the consent of the landlord, and that the refusal of the plaintiff to deliver possession, for that purpose, did not constitute a failure of the consideration, of the note.

Is this true ? For upon this proposition the case hangs.

In Smith’s Law of Landlord and Tenant, p. 356, the doctrine upon this subject is thus correctly stated : “ But though a lease is necessarily a contract, yet it is a contract which creates an estate; and by the law of England an estate is assignable, although a contract is not so. And the landlord, therefore, may assign even his estate in remainder; the tenant his estate in his turn ; and thus the parties to the relation may be altered, either by a change of landlord or a change of tenant.”

True the tenant cannot substitute a new paymaster, without the acceptance of the landlord; but this was not proposed in this case. Garner was to remain bound for the rent.

If, then, Byard refused to deliver possession, except upon terms which he had no right to exact, but used and occupied the premises himself, Garner had a right to repudiate the contract, which he did; and the consideration of the note has failed.

Judgment reversed.