Kokomo Rubber Co. v. Anderson

125 S.E. 783, 33 Ga. App. 241, 1924 Ga. App. LEXIS 828

• Court: Court of Appeals of Georgia
• Decided: December 15, 1924
• Docket: 15521
• Status: Published

Opinion

Bell, J.

(After stating the foregoing facts.)

1. Assuming that the plaintiff, or, instead, his lessee, the .Hughes Piano Company, might have been entitled to an action against the defendant for the recovery of possession, or for mesne profits (38 Cyc. 1072-3; Parker v. Salmons, 113 Ga. 1167 (5), 39 S. E. 475; Bigelow on Torts, p. 233), such is not the character of the action as brought. The suit is not sustainable under the Civil Code, § 4471, providing that the bare right of possession of-land authorizes the recovery of damages for the withholding of the 'right, for two reasons: First, if, before entry, Anderson had a right of possession, he had sold the same to the piano company; second, the plaintiff’s lease from Black was one in reversion, giving the plaintiff no interest in the property, nor any right of possession until entry. His lease was to commence in the future, at the expiration of the term of the defendant. “At common law, the estate in a lease, to commence in futuro, did not vest until the tenant had accepted it by entering in possession; but until possession, he held the right of entry, which was- called his interest in the term, or interesse termini.” Field v. Howell, 6 Ga. 423 (3), 431; 16 R. C. L. 638, § 124; 4 Kent’s Commentaries (14th ed.) 97. The defendant, therefore, violated no right of possession of the plaintiff. Prior to the plaintiff’s entry, his rights were only in his contract with Black.

His lease did not make him the defendant’s landlord. Any right, therefore, to proceed against the defendant as a tenant holding over remained in Black. “The right to maintain an action against a tenant for damages for wrongfully holding over is generally held to be restricted to the landlord, and it has been held, though the authorities are not in entire accord, that such an action can not be maintained by one to whom the landlord has leased the premises for a term to commence after the expiration of the over-holding tenant’s term.” 16 R. C. L. 1168, § 690; L. R. A. 1915C, p. 169, note. The defendant’s original entry was lawful, and although his holding over was wrongful, it was not a trespass. Compare Sheftall v. Zipperer, 133 Ga. 488 (2) (66 S. E. 253). It was even wrongful only as against Black because Black could have consented and made it legal, irrespective of the wishes of Anderson or the piano company. Stanley v. Stembridge, 140 Ga. 750 (4) (5) (79 S. E. 842); King v. Durkee-Atwood Co., 126 Minn. 452 (148 N. W. 297, L. R. A. 1915C, 235).

While it is true that the plaintiff does not appear to have proceeded upon the theory that the defendant was his tenant, the case, as we construe it, can be upheld, if at all, only as an action on the case, which “is an action for the recovery of damages, for acts unaccompanied with force, and which in their consequences only are injurious; for though an act may be in itself lawful, yet, if in its effects or consequences, it is productive of any injury to another, it subjects the party to this action.” Hendrick v. Cook, 4 Ga. 241, 260. Such an action is brought under our Civil Code, § 4405, providing that “when the law requires one . . to forbear the doing of that which may injure another, though no action be given in express terms, upon the accrual of damage the party may recover.” Do either the averments or the evidence make a ease against the defendant under these principles? To answer this question it is necessary to determine the rights and duties of the various parties concerned. Black owed Anderson the duty to see that leased premises were open to entry at the time fixed for Anderson’s taking possession. If this were not true, the case would end here, because if such duty did not rest upon Black with respect to Anderson, it would not have been imposed upon Anderson with respect to the piano company, and, therefore, the piano' company would not have been justified in repudiating its contract with Anderson merely because the defendant rubber company refused to vacate, but should itself have borne the burden of recovering possession. Stiger v. Monroe, 109 Ga. 457 (1) (34 S. E. 595).

This court, however, is committed to the doctrine that “In a lease contract, where there is no stipulation to the contrary, the lessor impliedly warrants that the leased premises shall be open entry by the lessee at the time fixed for taking possession.” Browder-Munget Co. v. Edmondson, 7 Ga. App. 843 (1) (68 S. E. 4531); Watkins v. Stulb, 23 Ga. App. 181 (3) (98 S. E. 94). See also 16 R. C. L. 724, § 215; King v. Reynolds, 67 Ala. 229, 232 (42 Am. R. 107); Herpolsheimer v. Christopher, 76 Neb. 352 (111 N. W. 359, 9 L. R. A. (N. S.) 1127); Sloan v. Hart, 150 N. C. 269 (63 S. E. 1037, 21 L. R. A. (N. S.) 239, 134 Am. St. Rep. 911). It thus appears that the defendant’s holding over rendered Black and Anderson, successively, unable to comply with their lease contracts. In these circumstances Anderson was compelled to lose the fruits of his contract with the piano company. But what duty has been violated by the defendant rubber company ? Only the obligation to deliver possession to his landlord at the expiration of his term. Civil Code (1910), § 3697. The petition does not charge the violation of any other, although it is averred that the breach of this duty was unwarranted, arbitrary, and illegal. The petition seeks, in its last analysis, to recover damages of the defendant for the defendant’s breach of a contract between it and Black, upon the theory that such breach indirectly interfered with the contractual relations between Black and the plaintiff. The wrong of the defendant was to Black, and it is the general rule that one person, can not maintain an action against another for an injury to a third person on the ground that the wrong has also indirectly injured the plaintiff by reason of his contractual relations with the third person. 37 Cyc. 394. “No privity is necessary to support an action for a tort; but if the tort results from the violation of a duty, itself the consequence of a contract, the right of action is confined to the parties and privies to that contract, except in cases where the party would have had a right of action for the injury done, independently of the contract.” Civil Code (1910), § 4408. To the same effect, see 38 Cyc. 433.

Our Supreme Court, in Byrd v. English, 117 Ga. 191 (43 S. E. 419, 64 L. R. A. 94), held that a party to a contract who is injured by reason of the failure of the other party to comply with its terms, can not recover damages of a third person for his negligent act by which the performance of the contract was rendered impossible. This case would be controlling of the question now before us if the act therein complained of had been wilful and arbitrary instead of merely negligent. The exact point seems, however, to be fully covered by the New Jersey case of Dale v. Grant, 34 N. J. Law 142, from which the Supreme Court quotes with approval in the opinion in Byrd v. English, in which it was said: “A case in point which well illustrates the principle governing the case now under consideration is that of Dale v. Grant, 34 N. J. L. 142, where it was held that ‘a party, who by contract is entitled to all the articles to be manufactured by an incorporated company —he, such party, furnishing the raw materials—can not maintain an action against a wrongdoer, who, by a trespass, stops the machinery of such company, so that it is prevented from furnishing, under said contract, manufactured goods to as great an extent as it otherwise would have done/ In the opinion (p. 149) the court says: ‘The law does not attempt to give full reparation to all parties injured by a wrong committed. If this were so, all parties holding contracts, if such exist, under the plaintiffs who may have been injuriously affected by the conduct of the defendants, would be entitled to a suit. It is only the proximate injury that the law endeavors to compensate; the more remote comes under the head of damnum absque injuriad ”

All that was done by the defendant was to prevent Black from carrying out his contract with Anderson, which it did by wrongfully holding over. Does the duty owed by one party to a contract constitute the object of a right which a stranger to the contract can infringe and thereby render himself answerable ex delicto? In other words, was Anderson’s right to have performance by Black analagous to ownership or possession? The answer it seems should be in the negative. Again, the breach of a duty arising merely in virtue of a contract, such as was the defendant’s wrong here, ordinarily will not give rise to a cause of action in favor of a stranger, as was the plaintiff to the contract between the defendant and Black. See Pollock on the Law of Torts (11th ed.), 556-8. Cf. Daugherty v. Herzog, 145 Ind. 255 (44 N. E. 457, 32 L. R. A. 837, 57 Am. St. Rep. 204).

The case does not fall within the line of those authorities which hold that if a third person maliciously interferes with or procures one of the parties to a contract to violate it, ho will be liable to the other contracting party for the resulting injury. See Employing Printers Club v. Blosser Co., 122 Ga. 509 (3), 519 (50 S. E. 353, 69 L. R. A. 90, 106 Am. St. Rep. 137, 2 Ann. Cas. 694); Southern Ry. Co. v. Chambers, 126 Ga. 404 (1, 2) (55 S. E. 37, 7 L. R. A. (N. S.) 926); Luke v. Dupre, 158 Ga. 590 (124 S. E. 13); Duane Chair Co. v. Lewallen, 22 Ga. App. 307 (1) (95 S. E. 997); Fain v. Wilkerson, 22 Ga. App. 193 (2) (95 S. E. 752); Hughes v. Bivins, 31 Ga. App. 198 (1) (121 S. E. 590); Collier v. Moore, 31 Ga. App. 227 (120 S. E. 441). Whether a liability would have resulted if the defendant had been guilty of some affirmative action, such as fraud, deceit, violence, or intimidation, rendering performance by Black impossible, or had had a specific and positive intention to injure the plaintiff, by means of its continued occupancy, rather than merely to unfairly serve its own convenience and advantage, we think it clear that, with neither of these elements present, the holding over can not be said to be a breach of any duty to the plaintiff. See Cooley on Torts (3d ed.), 588, 592. Cf. Brink v. Wabash R. Co., 160 Mo. 87 (60 S. W. 1058, 53 L. R. A. 811, 813, 83 Am. St. Rep. 459). The rights of the plaintiff arose out of a contract. The duty of the defendant was imposed by entirely different contract. There was no privity between them under either contract. The damages resulting from an indirect injury to the rights of the plaintiff by the violation of the duty of the defendant are plainly too remote to form the basis of an action for damages.

We conclude that the plaintiff neither alleged nor proved a cause ■ of action.

If the holding over was a tort against Anderson, the same might have been claimed by the piano company or by any one holding under Anderson through successive leases. The line might have extended through any number of successive lessees, with the right in any or all of them to sue, who elected to do so. We think that to uphold the action would be a radical departure from established principles, and before assenting to a doctrine which would so likely prove extremely dangerous in some cases, we should require the most clear and unequivocal authority. None has been found.

It follows, that while the demurrer did not challenge the plaintiff’s right of any recovery whatever, but merely contended that a recovery could not be had to the extent prayed, the court ‘erred in overruling it. It was further and consequent error to refuse the defendant’s motion for a new trial.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.