Opinion
41786.
ARGUED FEBRUARY 7, 1966.
DECIDED MARCH 11, 1966. REHEARING DENIED MARCH 22, 1966.
Action for commissions. DeKalb Civil and Criminal Court. Before Judge Mitchell.
Fine Rolader, D. W. Rolader, for appellant.
Young Thomason, Hardaway Young, III, for appellee.
In this action by a broker to recover commissions on monthly rentals allegedly due the broker under the written contract sued on, a copy of which is allegedly attached to and made a part of the petition, the basis of recovery is the obligation by the lessee to pay to the lessor the rentals specified in the contract, on which commissions are alleged to be due. Since the action is on the contract and the copy attached to the petition does not show the lessee's signature, there is no valid allegation that the lessee was bound by the contract since the lessor would not be bound in the absence of the signature of the lessee to the purported bilateral contract. While the petition alleges that the contract was entered into by the lessor and lessee, the exhibit controls as to the contents and legal effect of the instrument. Spiegel v. Hays, 103 Ga. App. 293 ( 119 S.E.2d 123).
The lease was for more than one year, and since it was not alleged to have been in writing, only a tenancy at will resulted. Compliance with the terms of the contract beyond a year as to the payment of monthly rentals and the payment of the broker's commissions did not alone take the case out of the statute of frauds. The record shows nothing whatsoever which would estop the lessor from terminating the contract either as to the lessee or the broker so the cases involving estoppel, cited by appellant, are not applicable.
The court did not err in sustaining the general demurrer to the petition.
Judgment affirmed. Frankum and Pannell, JJ., concur.