Shiflett v. Anchor Rome Mills Inc

Decision Date04 December 1948
Docket NumberNo. 32250.,32250.
Citation50 S.E.2d 853
CourtGeorgia Court of Appeals
PartiesSHIFLETT. v. ANCHOR ROME MILLS, Inc.

Rehearing Denied Dec. 16, 1948.

Syllabus by the Court.

1. Trial by jury is a privilege which may be waived in which case the judge passes on all questions of both law andfact. See Flint River Steamboat Co. v. Foster, 5 Ga. 194 et seq, 48 Am.Dec. 248.

2. (a) The acceptance of rent after the commencement of a dispossessory proceeding, that accrued after said proceeding was commenced, amounts to a waiver by the landlord of his right to claim a forfeiture of the lease contract for non-payment of rent. See Guptill v. Macon Stone Supply Co., 140 Ga. 696, 79 S.E. 854, Ann. Cas. l915A, 1249.

(b) However the acceptance of rent under such circumstances does not estop the landlord from pressing such proceeding to dispossess the tenant on the ground that he is holding over and beyond the term for which the premises were rented to him. See Allen v. Allen, 154 Ga. 581(6), 115 S.E. 17.

(c) A motion to dismiss a dispossessory warrant proceeding on the ground that it fails to contain certain allegations contended to be essential is in the nature of a general demurrer and is directed at the pleadings. A judgment of the trial court overruling such motion cannot be raised by motion for a new trial. See Code, § 81-302; Terrell County v. City of Dawson, 172 Ga. 403(1), 158 S.E. 47; Kelly v. Strouse & Bros, 116 Ga. 872(2), 43 S.E. 280.

3. The construction of a contract is generally to be most strongly against the party undertaking the obligation. See Code, § 20-704, subsection (5).

Error from Superior Court, Floyd County; C. H. Porter, Judge.

Dispossessory proceeding by Anchor Rome Mills, Inc., against W. E. Shiflett to recover possession of leased premises. Trial by the court resulted in a judgment for plaintiff, defendant's motion for new trial was overruled and defendant brings error.

Judgment reversed.

On May 8, 1948, defendant in error, Anchor Rome Mills, Inc., hereinafter referred to as plaintiff represented by its agent, J. W. Cooper, swore out a dispossessory warrant against William E. Shiflett, herein after referred to as the defendant, said warrant contending that plaintiff is the owner of certain house and premises as tenant and fails to pay rent due for same and that the said tenant omits to deliver possession of said house and premises, although due demand has been made upon said tenant for possession thereof. On May 10, 1948, defendant filed a counter-affidavit and bond stating that he has not failed to pay rents as alleged in said eviction affidavit, but to the contrary, shows that he has tendered, and now tenders, payment in full of any rents due to said Anchor Rome Mills, Inc. and that therefore he has not failed to deliver possession to said Anchor Rome Mills, Inc. either as alleged in said affidavit or otherwise. On June 30, 1948, defendant paid Anchor Rome Mills $26 as rent for 13 weeks from March 22, 1948, to June 20, 1948. On July 15, 1948, the case went to trial by agreement before the Judge without a jury. At the conclusion of the evidence, the plaintiff tendered the following amendment to the affidavit and dispossessory warrant executed on May 8, 1948, "that said tenant, William Shiflett, was at the date of the original affidavit, and is now a tenant and is holding said house and premises over and beyond the term for which the same was rented and leased to him and that said tenant omits to deliver possession of said house and premises, although due demand has been made upon the said tenant for possession thereof." This amendment was allowed by the Court and thereafter the court entered judgment in favor of the plaintiff.

On the trial of the case the defendant testified that he occupied the above named house and premises; that he went out on strike and that the following day "they gave us our checks and I went up to get mine and I asked Mr. Allee did he want to keep the check for the rent until the strike was over and he said it wasn't necessary. I offered him further rental after that time up to June 30th. I was $26 behind with my rent and I went down and paid it up and I have a receipt for it. * * * That receipt dated June 30th, 1948 to William Shiflett for $26 rent, 13 weeks, from 3/22/48 to 6/20/48 signed 'Anchor Rome Mills, Robert Allee' was given me at the time that money was paid."

On re-direct examination defendant testified, "My rent prior to the time of the strike has been collected--it was deducted from my check every week, $2.00 a week. My check when I went there to get it on Saturday after this strike--I offered to leave it--was somewhere around thirty or forty dollars, I imagine between thirty and forty dollars, and I offered to leave that check to cover my rent."

On or about April 29th defendant admits receiving a letter from the Anchor Rome Mill, Inc. demanding and asking that he vacate the premises in three days in accordance with his lease contract. There was also evidence that the letter was mailed on April 29th.

Plaintiff introduced the following documentary evidence, the above referred to letter: "Since you have not been at work at Anchor Rome Mills for a number of weeks and your rent for the dwelling house known as * * * City of Rome, Ga. has not been paid, and in accordance with your contract and agreement that you would vacate said premises on three days' notice, this is a notice and demand that you surrender possession to the undersigned of said premises within three days from the date of receipt of this letter * * * Anchor Rome Mills, Inc.;" also a copy of the lease contract signed by defendant from which the following excerpts pertinent to this case are quoted: "(c) Said landlord or any officer thereof may cancel this rental agreement at any time by giving said tenant three days' notice thereof; (d) Said tenant is an employee of said landlord and termination of such employment at any time for any reason shall thereby and thereupon terminate this rental agreement; and (e) Upon the termination of this rental contract, upon notice, termination of employment or other cause, said tenant agrees to vacate said house and premises without let or hindrance within three days from such termination. This the 17th day of August, 1946, Anchor Duck Mills, BY B. H. Bachman Landlord s/William E. Shiflett, tenant."

The court entered judgment in favor of the plaintiff. The defendant filed a motion for a new trial on the general grounds which was later amended by adding six special grounds. On the hearing the trial judge overruled defendant's motion for a new trial and this judgment is assigned as error.

Graham Wright and Wright & Scoggin, all of Rome, for plaintiff in error.

Matthews, Owens & Maddox, of Rome, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

1. The 1st special ground of the amended motion for a...

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