Roberson v. Weaver

• Citation: 89 S.E. 769,145 Ga. 626
• Decision Date: 18 August 1916
• Docket Number: 587.
• Parties: ROBERSON v. WEAVER.
• Court: Supreme Court of Georgia

89 S.E. 769

145 Ga. 626

ROBERSON v. WEAVER.

No. 587.

Supreme Court of Georgia

August 18, 1916

Syllabus by the Court.

A warrant to dispossess a tenant failing to pay rent is converted by the tenant's counter affidavit into mesne process, and the further procedure partakes of the nature of an ordinary suit, in respect to the amendment of the pleadings.

It is in the discretion of the court to allow a plea to be amended without the affidavit required by Civ. Code 1910, § 5640 that the facts contained in the amendment were not omitted for the purpose of delay. The court's discretion was not abused in this instance.

The defendant in his plea may admit a prima facie case for the plaintiff; and if this right is asserted before the plaintiff introduces evidence, the burden of proving his defense is upon the defendant, and he is entitled to open and conclude.

In a counter affidavit against a warrant to dispossess him for failure to pay rent, the tenant may recoup such damages as may have been sustained at the time of the service of the dispossessory warrant.

The owner of a hotel building leased it for a term of three years, beginning at a specified date. The lease was executed about two months before the term was to begin, and while the hotel was in possession of another tenant whose term was to expire with the beginning of the new lease. In the lease the landlord covenanted, as early as practicable, to enlarge the hotel by the addition of other rooms, to make certain alterations, to do certain repairs to other parts of the hotel in conjunction with the work of the alterations, and on completion of the work to equip the additional rooms with furniture. Upon this being done the lessee was to pay an additional monthly rent. The lessor's covenant bound him to proceed with the work of making the improvements as soon as he had the right of lawful entry, and to prosecute the work to completion with reasonable promptitude. A failure to make the improvements as provided in the lease was a breach of his covenant.

If the landlord had breached his covenant by failure to make the additions and improvements at the time he undertook to dispossess his tenant for failure to pay a month's rent in advance according to the tenant's covenant, and the landlord's breach of covenant affected the value of the lease as an entirety, the tenant could recoup as damages the difference between the value of the lease considered as an entirety and the amount which the tenant contracted to pay.

A covenant in the lease bound the landlord to keep all other portions of the hotel in repair and in a reasonable condition, and on his failure after ten days' written notice to make necessary repairs the tenant was authorized to do so at the landlord's expense; the landlord was not to be liable for any damages resulting from leaks in the roof unless he was given written notice of the existence and approximate location of the leaks, and five days were allowed in which to make the repairs. On breach of this covenant by the landlord, where no special damages are claimed by the tenant other than the effect of the breach on the value of the lease, the measure of damages is the diminished value of the lease due to this breach.

Some of the testimony with respect to the leaks in the roof was not sufficiently restricted to the time when the leaks existed with relation to the date of the alleged breach (whether before or after January 1, 1908), nor as included in the tenant's written notice to the landlord, complaining of leaks in the roof.

Testimony was allowed as to the value of furnished rooms and rooms with baths, and the number of guests turned away for lack of accommodation, as bearing on the value of the lease for the full term if the additions had been made by the landlord as he obligated to do. This evidence was incompetent, as the damage claimed was the difference between the rental value of the premises which the tenant contracted to pay and their value had the improvements been made.

The testimony of the tenant relating to the promises of the landlord with reference to a prior parol lease was irrelevant.

Error from Superior Court, Laurens County; E. D. Graham, Judge.

Proceedings by F. H. Roberson against M. V. Weaver. There was a judgment for plaintiff, and defendant brings error. Reversed.

See also, 134 Ga. 149, 67 S.E. 662.

Defendant in his plea may admit a prima facie case for plaintiff, and if this right is asserted before plaintiff introduces evidence, the burden of proving the defense is upon the defendant, and he is entitled to open and close.

"(7) The lessee contracts, as a part of the consideration of this lease, to pay all light and water charges, to replace all broken glass, to keep the hotel roofs clear of litter and trash, and to keep all gutters and drain pipes open and unobstructed; also to keep all the plumbing in first-class order and repair; all without cost to the lessor.

(8) The lessee contracts to keep said hotel open continuously during the life of this lease; to operate it under her personal supervision and direction, in a proper and orderly manner as a high-class commercial hostelry, at rates of $2 per day and upward, under the name and style of the New Dublin. * * * (10) The lessor shall keep all other portions of the property in repair and in a reasonable and tenantable condition. Should he fail to make necessary repairs, or to proceed towards doing so within ten days after delivery [of] written notice from the lessee to the lessor or his agents, then in such case the lessee may make such repairs at the expense of the lessor, at the lowest possible cost and to the best advantage. An itemized statement of same, showing material and labor furnished, certified to by the mechanic or contractor doing the work, and properly receipted, may be tendered in part payment of the rent due for the next succeeding month. But the lessor shall not be liable to the lessee for any damage resulting from leaks in the roof, unless written notice of the existence and approximate location of such leaks has been given to the lessor or his agent, and five days' time allowed for making needed repairs in the defective roof.

(11) It is understood and agreed between the parties that the lessor shall, as early as practicable, enlarge the hotel, by the addition of a third story of [or?] such other plan as he may adopt, thereby increasing the capacity of the hotel to approximately forty-six rooms above the ground floor, not less than eight of which rooms shall be provided with connecting baths; the enlargement of hotel lobby by the removal of front stairway and partition wall between same and lobby, and corresponding enlargement of room No. 17; the enlargement or alteration of the kitchen, serving room, and storeroom; making necessary alterations in any of the existing rooms, walls, or other parts of the building, in order to carry out the lessor's plans for the work. The contractor, workmen, and others engaged in the prosecution of this or any other work of similar character shall have free and unobstructed passage in and out of the premises during working hours.

(12) The lessor agrees to repair or replace all broken plastering, paint all woodwork in need of paint, kalsomine or whitewash walls in the existing rooms and halls not already papered or in good repair, in conjunction with the other alterations referred to; the work to be proceeded upon with reasonable promptness and completed as soon as practicable.

(13) Upon the completion of the additional rooms and their being equipped by the lessor with usual necessary heavy furniture, consisting of bedsteads, springs, mattresses, pillows, dressers, washstands with usual crockery ware, chairs, and tables, the lessee agrees to receive said rooms as part and parcel of said hotel, and thereafter to pay, on demand of the lessor, rent for the remainder of the original term of three years at the rate of three hundred and twenty-five ($325.00) monthly in advance, on the 1st day of each month without grace, in the manner set forth in the paragraph No. 6, above."

On January 1, 1908, the lessee refused to pay the month's rent in advance, and also on demand refused to surrender possession of the premises to the lessor. Thereupon the lessor sued out a warrant to dispossess the lessee for failure to pay rent. The dispossessory warrant was arrested by the filing of a counter affidavit by the lessee that the amount of rent claimed was not due. By amendment of her counter affidavit the lessee sought to recoup damages for an alleged violation of the lessor's covenants. The jury returned a general verdict for the defendant. The lessor made a motion for a new trial, which was refused, and he sued out a bill of exceptions.

Hardeman, Jones, Park & Johnston, of Macon, and W. C. Davis and Jno. S. Adams, both of Dublin (Harry S. Strozier, of Macon, of counsel), for plaintiff in error.

Hines & Jordan, of Atlanta, and G. H. Williams, of Dublin, for defendant in error.

EVANS, P.J. (after stating the facts as above).

1. The progress of the dispossessory warrant was arrested by the filing of a counter affidavit that the rent claimed was not due. A warrant to dispossess a tenant is converted by the filing of a counter affidavit into mesne process, and the further procedure partakes of the nature of an ordinary suit, in respect to the amendment of the pleadings. Civil Code 1910, § 5076; Mitchell v. Masury, 132 Ga. 360, 64 S.E. 275.

2. The statute provides that a defendant cannot set up in an action any new fact, or defense, of which notice was not given by the original plea, unless he shall attach to the amendment an affidavit that he did not omit such new facts or defense for the purpose of delay and that the amendment is...