Burch v. Harrell

• Decision Date: 23 April 1894
• Citation: 93 Ga. 719,20 S.E. 212
• Parties: BURCH. v. HARRELL et al.
• Court: Georgia Supreme Court

20 S.E. 212

93 Ga. 719

BURCH.

v.HARRELL et al.

Supreme Court of Georgia.

April 23, 1894.

Action for Kent — Sufficiency of Evidence-Failure to Produce Lease.

In an action upon an account for rent, or for use and occupation, the plaintiff can recover upon undisputed and uncontradicted evidence that the defendant has admitted that the account was correct, due, and unpaid, notwithstanding it appears that the defendant, at the time the tenancy was created, took a written lease of the premises from the plaintiff, and this lease is neither produced nor accounted for.

(Syllabus by the Court.)

Error from superior court, Dodge county; C. C. Smith, Judge.

Action by John H. Burch against Harrell, Caldwell & Co. and others to recover rent Judgment was rendered for defendants, and plaintiff brings error. Reversed.

Roberts & Smith, for plaintiff in error.

De Lacy & Bishop, for defendants in error.

LUMPKIN, J. This was an action brought by Burch against Harrell, Caldwell & Co. upon an open account for the "lease of lots of land Nos. 124 & 117, in the 14th Dist of Dodge county, for turpentine purposes, 12, 077 boxes, for the years 1S83, 1884, 1885, @ $20 per thousand." By an amendment it was alleged that the account sued on was for the use or rent of timber for turpentine purposes, of which the defendants had enjoyed the benefits during the years mentioned. It appeared from the testimony of one Woodard, who was introduced by the plaintiff, that the lease from the plaintiff to the defendants was in writing, signed by the plaintiff, and had been delivered by him to the defendants, who, however, had not themselves signed the lease, or given to the plaintiff any written evidence of their obligations to him in respect to the timber leased. After Woodard had testified to these facts, the court, on the ground that the lease was the best evidence of the matter sought to be proved, refused to allow the witness to state how many boxes had been cut in the timber by the defendants, and also ruled out all the testimony previously given by this witness as to the boxing of the timber by the defendants. For the same reason the court also refused to allow the plaintiff to prove by another witness that all of the defendants had admitted to him that the account sued on was correct due, and unpaid. The plaintiff, as a result of these rulings, having no evidence upon which to go before the jury, was nonsuited, and brings the case to this court for review. Nothing more than has already been stated appears as to what were the contents of the written lease in question.

In Tumlin v. Furnace Co. (recently decided) 20 S. E. 44, and which was a very carefully considered case, we again stated and reaffirmed the doctrine, supported by previous adjudications of this court and by other recognized authorities, that although theremay have been a special contract in writing between the parties as to the subject-matter in controversy, an action upon an open account might be brought and sustained where it appeared that the plaintiff had fully performed his part of the contract, and nothing remained to be done, except for the other party to make payment. If this be sound law, it would seem logically to follow that the plaintiff in such a case would be entitled to prove his action as laid, and consequently that evidence showing a quantum meruit or quantum valebit would be admissible without reference to the written...