Lewis & Co. v. Chisolm

• Decision Date: 30 September 1881
• Citation: 68 Ga. 40
• Court: Georgia Supreme Court
• Parties: Lewis & Company. vs. Chisolm.

68 Ga. 40

Lewis & Company. vs. Chisolm.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Landlord and Tenant. Contracts. Damages. Before Judge Hillyer. Fulton Superior Court. April Term, 1881.

Reported in the decision.

Mynatt & Howell, for plaintiffs in error.

E. N. Broyles, Alex R. Jones, for defendant.

Speer, Justice.

The defendant in error sued out a distress warrant against the plaintiff in error to recover an amount claimedfor rent, under the contract stated in the following affidavit:

" State of Georgia—Fulton County.

In person appeared before me, the undersigned, a justice of the peace in and for said county, W. P. Chisolm, agent for Mrs. Martha B. Chisolm, who being duly sworn, deposes and says, that heretofore, on the first day of September, in the year 1875, said W. P. Chisholm made and entered into a certain written mutual agreement with Henry Lewis and T. Sumner Lewis, partners, under the firm name and style of H. Lewis & Co., a copy of which said agreement is as follows, to-wit:

'Memorandum of an agreement made this first day of September, A. D. 1875, between Willis P. Chisolm, agent for Mrs. Martha B. Chisolm, of Atlanta, Fulton county, Georgia, of the first part, and Henry Lewis and T. Sumner Lewis, doing business in the firm name of H. Lewis & Co., of the same place, of the second part:

Witnesseth, said Chisolm, agent, agrees to lease, and by these presents does lease, to the party of the second part a building just completed by Messrs. Cook, Gunby & Co., two stores brick and rock basement, on the south side of Alabama street near the Georgia Railroad depot, in said city of Atlanta, for the term of ten (10) years, with the privilege of five (5) years more, making fifteen (15) years in all. for the annual rental of thirteen hundred and twenty (1320) dollars, payable monthly, one hundred and ten (110) dollars per month. He further agrees to keep the building in good repair, and to pay said H. Lewis & Co. any damage they may sustain by his neglecting so to do, also to protect them in the peaceable occupation of the premises against any party or parties whatsoever.

In the event the building shall be destroyed by fire or otherwise, the rent is to cease until it can be replaced, which said Chisolm, agent, agrees to have done without unnecessary delay.

In consideration of the above, said party of the second part agrees to pay the rent as above specified.

In witness whereof, said parties hereto affix their names and seals.

H. Lewis & Co. [l. s.]

W. P. Chisolm,

Agent for Mrs. Martha B. Chisolm, [l. s.]'"

To this distress warrant the defendants below filed their counter-affidavit, denying any rent was due or to become due, alleging that plaintiff had failed to keep the premises in repair as he had agreed to do, by reason of which de-fendants were forced to leave the premises. They also pleaded, by way of recoupment, fifteen hundred dollars damages, sustained by reason of the failure of plaintiff to keep the premises in repair, and cost of their removal, loss of time, employes, etc. On the issues thus made, the jury, under the evidence and charge of the court, rendered a verdict for the plaintiff. A motion for a new trial was made, on various grounds as set forth, which was over, ruled, and defendants excepted.

When the case was called here a motion was made to dismiss this writ of error on the ground that T. S. Lewis, one of the defendants, alone made a motion for new trial, and to the refusal of which H. Lewis & Co. filed their bill of exceptions.

It appears from the record the distress warrant was sued out against H. Lewis & Co., who were the parties defendant that signed the contract of lease, and who also filed the counter affidavit, and the cause thus proceeded to judgment, but that T. S. Lewis, one of the defendants, in his own name, filed the motion for new trial. That he had the right to make the motion for new trial is not questioned, but whether H. Lewis & Co. could except to the decision rendered against him, refusing a new trial, is the question. That this bill of exceptions would avail T. S. Lewis there is no doubt, since it could be amended by striking the other co-plaintiff; and thus make it conform to the record. See Acts 1881. It, however, is not necessary for us, under the view we take of this case, to decide what would be the effect of the judgment below, as to H. Lewis, in the event of a reversal here of the judgment excepted to by T. S. Lewis. If we analogize it to a case of appeal the rule is, where one or more of the parties appeal and the others refuse, the whole record is taken up and all shall be bound by the final judgment, but in case damages shall be awarded upon such appeal, such damages are recoverable alone against the party appealing and his security, and not against the party failing or refusing to appeal. Code, §3620.

So Powell on Appellate Proceedings lays down the rule: "If the judgment be against several as a joint judgment and joint interest, and not severable, it is an entirety, and the reversion will be as to all, though the error assigned affected and related to the case of one only; as where there-is a judgment against two for the payment of money and one is an infant, against whom the judgment would be erroneous, upon error the judgment would be reversed as to both.\' Powell on App. Proceedings, 285: 14 Ohio, 413.

But it is not necessary for us to decide this question. We will treat it as though the bill of exceptions were amended by the record, and the only plaintiff in error before this court was T. S. Lewis. Neither do we intend to say that this motion for a new trial should not have been demurred to on the hearing below, so as to allow the amendment and have proper parties made then. It was evidently a mere clerical omission, as appears from the whole record; and the judgments we here pronounce will dispose of these questions without deciding them. The motion to dismiss the writ of error is therefore overruled.

2. The important legal question that is involved, and which must control the controversy between these parties, is to be found in the charge given by the court to the jury, and made a ground of exception in the fourth ground of the motion for new trial, as follows: "The court is of opinion and so instructs you that, under the contract of lease, which you have out before you, the covenant of the landlord to make repairs is an independent covenant, and a mere failure to make repairs to the extent of merely diminishing the value of the use of the premises, and not to entirely destroy it, would not defeat his right to recover, but would authorize the diminution of the rent to.on amount that you find is right for a failure to make repairs."

Was the court right in advising the jury that the covenant of the landlord to make repairs, under the lease..wasan independent covenant? For if so, then the consequences stated by the court follow logically, and plaintiff below is entitled to recover, subject, of course, as the...