Hulsey v. Harrington

• Decision Date: 11 March 1938
• Docket Number: 26680.
• Citation: 195 S.E. 901,57 Ga.App. 479
• Parties: HULSEY et al. v. HARRINGTON.
• Court: Georgia Court of Appeals

195 S.E. 901

57 Ga.App. 479

HULSEY et al. v. HARRINGTON.

No. 26680.

Court of Appeals of Georgia, Second Division

March 11, 1938

Syllabus by the Court.

1. It is not mandatory on this court, at the instance of counsel for the defendant in error, to disregard the entire brief of the evidence and refuse to consider it, where counsel for plaintiff in error, in preparing the brief of the evidence copied therein in full a piece of documentary evidence attached as an exhibit to the petition instead of omitting the documentary evidence from the brief of evidence and merely referring to it as provided in the Code, § 70-305.

2. Where a tenant, before the expiration of his term, notifies the landlord of his intention to vacate the rented premises and the landlord refuses to release the tenant from the contract, but notifies him that he will hold him to the contract, and the tenant vacates the premises and abandons the contract, the conduct of the landlord afterwards in going upon the premises and repairing leaks in the building on the premises and locking the door to the building, or, without the knowledge or consent of the tenant, reletting the premises to another tenant, does not constitute an acceptance by the landlord of a surrender of the term by the tenant.

3. Where, in the case now before the court, suit was instituted by the landlords against the tenant to recover rent for a period beginning about eight months after the tenant had vacated the premises, a judgment for the plaintiffs on a trial arising out of the issuance of a distress warrant for the rent against the defendant for a term beginning immediately after the defendant vacated the premises was an adjudication that the defendant did not surrender the term upon vacating the premises. The judgment, when introduced in evidence in the subsequent suit, was conclusive of the fact that the tenant in vacating the premises did not abandon the term.

Error from City Court of Hall County; Boyd Sloan, Judge.

Action by John M. Hulsey and another against John C. Harrington for amount allegedly due the plaintiffs as landlords by the defendant as tenant. To review a judgment for the defendant the plaintiffs bring error.

Reversed.

Chas J. Thurmond and Wheeler & Kenyon, all of Gainesville, for plaintiffs in error.

W. V. Lance and Oliver & Oliver, all of Gainesville, for defendant in error.

STEPHENS Presiding Judge.

John M. Hulsey and Mrs. Mary D. Neese instituted suit against John C. Harrington to recover an amount alleged to be due to the plaintiffs as landlords by the defendant as tenant for the period from March 1 to December 31, 1933 under a written contract of lease of a store building in the city of Gainesville, for a period of five years from July 15, 1930, at a rental value of $90 per month for the period of the lease subsequent to July 15, 1932. The defendant in his plea admitted that he had rented the premises under the alleged written contract of lease, but denied that he was indebted to the plaintiffs for the rentals sued for. He alleged that he occupied the building under his contract of lease until August 1, 1932, when he moved out and vacated the building and thereby "abandoned" the contract; that on or about March 1, 1933, the plaintiffs took possession of the property without the defendant's consent, resumed possession and control over the premises inconsistent with the defendant's right of possession and occupation, and on November 1, 1933, without the defendant's permission and inconsistent with his right of possession and occupation, leased the property to a Mr. Mauney, who took possession of the premises under the plaintiffs as landlords. As alleged in the defendant's plea, the plaintiffs had accepted a surrender of the lease by the defendant prior to the period for which it is alleged the defendant is indebted to the plaintiffs for rent, and had taken possession of the premises, and that therefore, prior to this period, the rental contract had been terminated, and during this period the defendant did not hold the premises as tenant and was not indebted to the plaintiffs for rentals for this period. It appears undisputed from the allegations in the petition and the answer of the defendant that the building had been leased to him under a written contract for a period of five years from July 15, 1930, covering the period of time for which the rentals are sued for, and that the defendant on or about August 1, 1932, abandoned the contract and moved out of the building and vacated the same.

The only witness who testified on the trial was J. M. Hulsey, one of the plaintiffs. The substance of his testimony, which was uncontradicted and undisputed, was that the defendant before he moved out of the building informed the witness that he intended to vacate and asked the witness would he take the property back, and the witness told him "no"; that the witness told the defendant that the building was the defendant's for five years, and he did not release the defendant from the contract; that witness had no further conversation with the defendant about the matter; that the defendant abandoned the building and moved out, and, as far as witness knows, left nobody in charge of the building; that the defendant left no tenant; that the defendant kept the building locked for a good while after he moved out and he kept some stuff in it; that the witness saw some sacks or some stuff in the building but did not know what it was; that after the defendant moved out witness had the building inspected to see if there were any leaks; that the defendant did not turn any key to the building back to the witness that for some time after the defendant moved out the building stayed locked; that witness went away and after he returned in January [evidently January, 1933], the building had been opened, one door was standing open as witness remembers; that after the defendant moved out the witness believes that he [witness] put a lock on the building; that he kept the building locked until November when he rented the building to Mr. Mauney; that witness did not tell the defendant that he was going to rent the building or that he was going to put a lock on the building, and that the defendant didn't say anything to the witness about it; that the...