
    25401.
    FORT VALLEY MOTOR CO. et al. v. EBERHARDT.
    Decided July 14, 1936.
    
      A. G. Riley, for plaintiffs in error. G. L. Shepard, contra.
   Broyles, C. J.

Mrs. Susie B. Eberhardt, as executrix of the will of Charles T. Eberhardt, brought suit against the Fort Talley Motor Company and E. M. Sammons, alleging that the defendant company, while solvent, surrendered its charter and at the time of such surrender Sammons was the sole stockholder, and all the assets of the company were in his charge for the benefit of creditors; that the defendants were indebted to the plaintiff on a contract for the lease of certain property from January 1, 1925, to December 31, 1934, and eighteen promissory notes (less credits thereon) for the balance of the rental due thereon; the contract being between P. M. McLean and Charles T. Eberhardt, and the notes being signed by McLean and payable to Eberhardt. The defendants answered, denying all allegations of liability. After the introduction of evidence the court directed a verdict for the plaintiff. A motion for new trial was overruled, and the defendants excepted.

The evidence disclosed that the original lease was transferable; that one Marchman purchased the lease agreement from the original lessee, McLean, and became “the sole, only, and exclusive owner of the said within lease agreement, having purchased same and assumed payment of the monthly rental therein fixed and all of the obligations and duties of the lessee under the agreement;” that Marchman sold it to one Carithers, but took it back upon the death of Carithers; that later Marchman sold the lease to Fort Talley Motor Company, the transfer being as follows: “Georgia, Peach County. For value received I hereby set over, transfer, and assign unto Fort Talley Motor Company, its successors and assigns, the within Jease contract, together with all right, title, interest, equity, and benefit therein and thereunder; it being understood that the said transferee, its successors and assigns, does hereby assume payment of all rent herein provided, beginning April 1, 1927, and all other obligations imposed thereunder and thereby” (italics ours); that the Fort Valley Motor Company paid Marchman $1000 in two notes of $500 each, for the lease contract, took possession of the property, and as lessor rented it to Sinclair Refining Company, its successors and assigns, and in the contract gave the lessee the privilege of extending the lease; that the Fort Talley Motor Company, after purchasing the lease contract and taking possession of the property, began paying the plaintiff the rent notes described in the original contract and continued such payments until July 1, 1933. This suit is for the balance of the rent due. The transfer under which the defendant company took possession of the property provided that the transferee “does hereby assume payment of all rent” from April 1, 1927. It goes further and provides that the transferee of the lease contract assumes “all other obligations imposed thereunder and thereby.” Moreover, the actions of the defendant show that it did assume such rents and obligations; and its contention that it was a tenant at will and had a right to terminate the contract is not supported by the evidence.. Nor is there any merit in the contention of counsel that the lessees preceding the Fort Yalley Motor Company should be parties defendant. The petition did not include them as parties; and no demurrer thereto was filed; no motion was made to make them parties, and no showing was made as to why they were necessary parties. The allegations of the petition and the denials in the answer formed an issue of fact. The material portion of the evidence which was undisputed was sufficient to authorize the direction of the verdict in favor of the plaintiff. The special grounds of the motion for new trial are without merit, and the court did not -err in overruling it.

This court not being satisfied that the case was brought up for delay only, the motion to award damages is denied.

Judgment affirmed.

MacIntyre and Guerry, JJ., concur.  