Woodard v. Stamos & Stratos

Stephens, J.,

dissenting. I am of the opinion that the surrender by the tenant of a part of the rented premises before the expiration of his lease, in consideration of the verbal agreement of his landlord to lease to him the remaining part of the premises occupied by him and not surrendered, for a period of three years from the date of the expiration of the old lease, and the acceptance by the landlord of such surrender and the actual taking over by him of the part of the premises surrendered by the tenant, constituted a complete contract at the-time, to commence in the future, and was not a mere promise to contract at a future date. Steininger v. Williams, 63 Ga. 475 (1). While this perhaps constituted such a part performance as would take the contract out of the operation of the statute of frauds, yet, being a parol agreement respecting the renting of lands for a period longer than one year, it became, under section 3693 of the Civil Code, a tenancy at will, to commence on January 1, 1919. The tenant could on that date,— the date of the issuance of the warrant to disposses him,—while in possession as a tenant at will, be dispossessed as a tenant holding over. It was error, therefore, to direct a verdict in favor of the, landlord.