Johnson v. Watkins

• Decision Date: 02 May 1921
• Docket Number: (No. 11998.)
• Citation: 26 Ga.App. 759,107 S.E. 341
• Parties: JOHNSON v. WATKINS.
• Court: Georgia Court of Appeals

26 Ga.App. 759

107 S.E. 341

JOHNSON

v.WATKINS.

(No. 11998.)

Court of Appeals of Georgia, Division No. 2.

May 2, 1921.

(Syllabus by Editorial Staff.)

Error from Superior Court, Gilmer County; John D. Humphries, Judge.

Action by E. W. Watkins, Jr., against L. C. S. Johnson. Judgment for plaintiff, and defendant brings error. Affirmed.

Thos. A. Brown, of Blue Ridge, for plaintiff in error.

A. H. Burtz, of Ellijay, for defendant in error.

JENKINS, P. J. [1, 2] 1. If, pending a tenancy, the landlord directly or indirectly resumes possession of the premises by acts amounting to an actual or constructive eviction of the tenant, or if the tenant becomes dissatisfied, and offers to surrender possession to the landlord, and the landlord thereafter resumes possession, or exerts a control over the premises inconsistent with the tenant's right of occupation, he thereby discharges the tenant from liability for future rent. A cancellation or rescission of the contract is thus effected by agreement of theparties, express or implied; and such "a surrender of a lease by operation of law may arise from any condition of facts voluntarily assumed by the parties, and incompatible with the continued existence of the relation of landlord and tenant between them." Rucker v. Tabor, 127 Ga. 101, 102, 56 S. E. 124, 125. See, also, Harris v. Dub, 57 Ga. 77; Ledslnger v. Burke, 113 Ga. 74 (1), 38 S. E. 313; Gay v. Peak, 5 Ga. App. 583, 584 (3), 63 S. E. 650.

2. The mere taking of the keys of a house from the tenant or his agent by the landlord will not, of itself, "in the absence of other acts showing an intention to accept a surrender, operate in law to establish a valid implied surrender." This depends upon the circumstances. Ledsinger v. Burke, 113 Ga. 74, 77, 38 S. E. 313; Schachter v. Tuggle Co., 8 Ga. App. 561 (2), 562, 70 S. E. 93. In the case at bar, there was evidence from which the jury were authorized to find that no express or implied agreement amounting to a contract of rescission or valid surrender was ever effected.

3. Exception is made to the admission in evidence of a letter from the landlord to the tenant, notifying her that he would not Consent to her vacating the premises, and would expect the rent for the full term of the lease, because there was, at the time of its submission to the jury, a memorandum on the bottom of such letter, as follows: "Original delivered by W. T. Charles, 11 a. m., 1/18/18, " and because no evidence from the person so purporting to have delivered the letter to the tenant was produced. The exception is not well taken, since the record shows that, when the letter was offered, the only objection made was that "there was no proof of service...