Gay v. Peake

• Citation: 63 S.E. 650,5 Ga.App. 583
• Decision Date: 09 February 1909
• Docket Number: (No. 1,519.)
• Parties: GAY . v. PEAKE et al.
• Court: United States Court of Appeals (Georgia)

63 S.E. 650

5 Ga.App. 583

GAY .

v.PEAKE et al.

(No. 1, 519.)

Court of Appeals of Georgia.

Feb. 9, 1909.

1. Appeal and Error (§ 616^*)—Record—Authentication.

The grounds of a motion for a new trial are not the subject-matter of valid exception, unless they are legally verified. The verification may appear from the bill of exceptions, or from the record, or from the approval of the trial judge. To "allow" grounds of a motion is not, however, equivalent to approving them. Holmes v. Pope, 1 Ga. App. 340, 58 S. E. 281; Seaboard Air Line Railway v. Bostock, 1 Ga. App. 189, 58 S. E. 136 (3); Wilson v. Cobb, 4 Ga. App. 2T2, 61 S. E. 133; Soell v. State, 4 Ga. App. 337, 61 S. E. 514.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 616.*

For other definitions, see Words and Phrases, vol. 1, pp. 344-346.]

2. Frauds, Statute of (§ 53*)—Agreements Not to be Performed Within One Yeah— Commencement.

"Contracts creating the relation of landlord and tenant for any time not exceeding one year may be by parol, and if made for a greater time shall have the effect of a tenancy at will." Civ. Code 1895, § 3117; Hayes v. Atlanta, 1 Ga. App. 25, 29, 57 S. E. 1087, 1089. If the relation of landlord and tenant is not to exist for longer than one year, a parol contract is valid, though made before the year begins. Steininger v. Williams, 63 Ga. 475, distinguishing Atwood v. Norton, 31 Ga. 507. *

[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. § 80; Dec. Dig. § 53.*]

3. Landlord and Tenant (§§ 194, 231*)— Surrender of Possession — Burden of Proof.

If, pending the duration of a tenancy, the tenant becomes dissatisfied and offers to surrender possession, and the landlord thereafter resumes possession or a control over the premises inconsistent with the tenant's right of occupation, he thereby discharges the tenant from liability for future rent. If he seeks to hold the tenant for the rental value of the premises for the period prior to his resumption of possession, the burden is on him to show what that value is. Harris v. Dub, 57 Ga. 78 (3); Ledsinger v. Burke, 113 Ga. 76, 38 S. E. 313.

[Ed. Note.—For other cases, see Landlord and Tenant. Cent. Dig. §§ 788, 926; Dec. Dig. §§ 194, 231.*]

4. Trial (§ 169*)—Nonsuit—Practice.

If the plaintiff fails to make a« prima facie case by the testimony, the case should end by nonsuit, and not by the direction of a verdict in favor of the defendant. The judgment is affirmed, with direction that it shall operate only as a nonsuit, and not as a final judgment concluding the case on the merits. Procter & Gamble Company v. Blakely Oil Co., 128 Ga. 606 (1), 614, 57 S. E. 879; Caudell v. So. Ry. Co., 2 Ga. App. 479, 58 S. E. 689; Murphy v. Ga. Ry. & Elec. Co., 4 Ga. App. 523, 61 S. E. 1133.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 381-389; Dec. Dig. § 169.*]

(Syllabus by the Court.)

Error from City Court of Swainsboro; Frank Mitchell, Judge.

Action by C. M. Gay against A. T. Peake and others. Judgment for defendants, and plaintiff brings error. Affirmed, with direction.

Saffold & Larsen, for plaintiff In error.

Smith & Kirkland, for defendants in error.

POWELL, J. The propositions of law announced in the headnotes decide the points raised in the record and for the most part do not require elaboration to be understood. A brief statement of the facts may, however, make them somewhat clearer. Gay sued out a distress warrant against the defendants for the rent of a plantation for the year 1905. He testified that the contract was made in December, 1904, and that the tenancy was to exist only throughout the year 1905; that he did not represent that the place contained any given number of acres; that he did not fail to make necessary repairs; that nevertheless the defendants, having entered into possession at the beginning of the year and having retained possession for about two months, expressed dissatisfaction on account of an asserted shortage in the quantity of the land and said they were going to leave, to which he replied that they might do as they pleased, but that he would hold them for the rent; that they did leave, and he thereupon allowed his son and his son-in-law to move upon the place and to cultivate about one-half of the land, though he charged them no rent. The defendants testified that they made an oral lease of the lands for five years; that the plaintiff represented that it contained between 150 and 165 acres; that in fact it contained only 105 acres; that they went to the plaintiff, complained of the shortage, and asked him either to reduce the rent or consent to their giving up the place, and he consented that they might leave, and he himself thereupon took charge of the place and controlled it throughout the year 1905. The case resulted in a verdict and judgment for the defendants.

The bill...