Harden v. Drost, 60418

Decision Date07 November 1980
Docket NumberNo. 60418,60418
Citation274 S.E.2d 748,156 Ga.App. 363
PartiesHARDEN v. DROST.
CourtGeorgia Court of Appeals

A. Stephenson Wallace, Augusta, for appellant.

Herbert E. Kernaghan, Jr., Augusta, for appellee.

BIRDSONG, Judge.

Breach of lease. George Drost is the owner of a piece of property in Augusta on which was located a building designed to be used solely as a restaurant. In 1975 Drost leased the property to the appellant Harden as a restaurant for a term of five years at a rental of $700 per month for the first year and $850 per month for the remaining four years. Harden operated the restaurant for a period of several months but soon found that overhead costs rendered continued operation nonprofitable. Harden then subleased the property to one Bruce but Bruce relinquished the restaurant back to Harden after only three or four months. Harden then subleased the restaurant for a second time to one Ross. Ross also relinquished the restaurant back to Harden after a few months. Harden abandoned possession and operation of the restaurant in December, 1975. Drost was aware and consented to the subletting to both Bruce and Ross. The sublease to Bruce on its face provided for Harden's liability for the rental and contents of the restaurant. The sublease to Ross had a last sentence purporting to release Harden from further liability and placed that liability on Ross. Drost admitted signing an approval of the sublease but denied that the document contained a release of Harden. Harden testified that he (Harden) prepared the sublease and that the document did not originally have the release provision. However, Harden contended that his son suggested that the release provision be added and Harden admitted adding the release provision at a time later than when the remainder of the sublease had been prepared. Harden maintained that the release provision was on the sublease at the time Drost signed it.

After Harden closed the restaurant, much of the contents of the building were either stolen or damaged by vandals and thieves. Harden furthermore did not pay the stipulated rental after vacating the premises. Drost brought suit against Harden seeking $31,150 as past due rent as of August 1, 1979; the remaining 8 months of rent amounting to $6,800; $18,684.96 as recompense for damages to the building; and $5,387.61 as recompense for lost personalty and certain repairs paid by Drost that allegedly was the responsibility of Harden. During the trial of the case, the trial court refused admission of the sublease to Ross on the ground that the document had been changed and Harden had not made a satisfactory explanation as to the change. In the absence of the disputed release of liability, the trial court directed a verdict for Drost as to past due rent in the amount of $31,150. The court also directed a verdict for Drost as to liability for future rent but left the amount to the jury. The jury returned a money verdict for Drost for future rent reduced to its present value in the amount of $2,040; $774.03 for expenses paid by Drost for repairs on Harden's behalf; and $5,600 for damages to the unoccupied building. The trial court entered judgment for these amounts. Harden brings this appeal enumerating six asserted errors. Held :

1. In his first enumeration of error Harden complains that the trial court erred in allowing Drost to testify that estimates furnished him by subcontractors (which were combined with his own estimates in those areas with which he was familiar) pertaining to work necessary to restore the building to its original condition amounted to $17,402.84. Harden urges that the testimony of the subcontractor estimates was hearsay and could not furnish a foundation for the claim for damages to the building.

We disagree. Drost was not testifying to the valuation of any particular subcontractor. He testified to a fact within his knowledge, namely that he had made inquiry and developed an estimate that it would cost $18,684.96 to restore the building, i. e., Drost testified to the fact of an estimate. In addition, Drost presented evidence, without objection, that the tax evaluation of the building had been reduced over $9,000 because of the damaged and deteriorated condition of the building. The jury returned a verdict that the compensable damages to the building amounted to $5,600 a figure well within the range of the evidence. We find no viable hearsay objection to the admission of the testimony in question, but arguendo, even if we were to conclude that the estimate was based upon hearsay, its admission worked no prejudice to Harden in view of the other evidence that the damages to the building had reduced its market value over $9,000 and the verdict of the jury was only $5,600. There is no merit to this enumeration of error.

2. Appellant combines enumerations of error 2, 4, and 5 in a single argument. The substance of this argument is that Drost elected to sue Harden for breach of the lease contract. The argument continues that this limits damages to the difference between the remaining rent stipulated in the lease and the actual value of the rent for the remaining term of the lease.

We find merit in this argument. Drost sued for future rents for the 8 months yet to run on the lease. The trial court charged the jury that liability as to future rental was established and a verdict thereon had been...

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10 cases
  • Multimedia WMAZ, Inc. v. Kubach
    • United States
    • Georgia Court of Appeals
    • 18 mars 1994
    ...by the evidence are cause for new trial unless it is apparent that the jury could not have been misled thereby." Harden v. Drost, 156 Ga.App. 363, 366(4), 274 S.E.2d 748. When, as here, a charging error is shown to have occurred, it is presumed to be prejudicial and harmful, and this court ......
  • Pippin v. Burnum, s. 68502
    • United States
    • Georgia Court of Appeals
    • 8 novembre 1984
    ...of the loss with a reasonable degree of certainty. Studebaker Corp. v. Nail, 82 Ga.App. 779, 785, 62 S.E.2d 198." Harden v. Drost, 156 Ga.App. 363, 365(2), 274 S.E.2d 748. See also Dept. of Transp. v. Bird, 158 Ga.App. 369, 370, 280 S.E.2d 394. The plaintiff met his burden in this regard. S......
  • King v. Davis
    • United States
    • Georgia Court of Appeals
    • 1 octobre 2007
    ...in dispute or if the erroneous instruction is inapplicable to a vital issue in the case. (Citations omitted.) Harden v. Drost, 156 Ga.App. 363, 365(2), 274 S.E.2d 748 (1980). During the portion of the jury instructions on the issue of damages, the trial court charged as follows: "[w]hen con......
  • Carey v. Bradford, A97A1173
    • United States
    • Georgia Court of Appeals
    • 23 avril 1997
    ..."While such a charge is abstractly a correct statement of the law, it is not adjusted to the facts of the case." Harden v. Drost, 156 Ga.App. 363, 366(4), 274 S.E.2d 748 (1980). Clearly, in the case before us, appellant could not "stop" using the egress and ingress to his second floor apart......
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