Harris v. Dub

• Decision Date: 31 July 1876
• Citation: 57 Ga. 77
• Parties: Thomas H. Harris et al, plaintiffs in error. v. B. Dub, defendant in error.
• Court: Georgia Supreme Court

57 Ga. 77

Thomas H. Harris et al, plaintiffs in error. v. B. Dub, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1876.)

Landlord and tenant. Contracts Evidence. New trial. Before Judge Hill. Bidd Superior Court. October Adjourned Term, 1875.

Reported in the opinion.

A. O. Bacon; J. &. J. C. Rutherford, for plaintiffs in error.

Whittle & Gustin; Washington Dessau, for defendant.

JACKSON, Judge.

In this case Harris rented a bar-room in the Lanier House from Dub, and gave his notes at $90.00 per month therefor. The rent was for one year. Harris abandoned the room in March, and notified Dub. In August, some time, the date is not precisely fixed, Dub sent to Harris for the key, and never returned it. He said, as a witness, that he sent for it to have the counter painted. When Dub sued on the rent-notes Harris pleaded that he quit the bar-room because Dub had not prevented one Engelke from selling wines, etc., in the Lanier *House, according to contract. Engelke rented a bar-room in the building known as the Lanier House, but not in the hotel of that name, and not from Dub, and the point indispute was whether the contract bound Dub to keep Engelke from selling wines, etc.

The evidence may be slightly conflicting, but it is, we think, overwhelmingly in favor of the verdict except for the short time that Dub resumed possession of the bar-room by sending to Harris for the key, and that was some time in August, as Harris himself swore. The court, we think, was too broad in his charge noticed in the head-notes, but as we think the verdict must always be for the plaintiff on the main question, we shall let it stand if plaintiff will write off one month's rent, $90 00, for September. We put it at one month, because defendant swore he sent the key to plaintiff some time in August, and as his is the only evidence as to the time, we put it most strongly against him to the last of August, and only deduct one month's rent. With this statement the case will be sufficiently understood by the head-notes.

Judgment reversed, with the direction that it stands affirmed if plaintiff will write off $90 00 from the entire rent.