Smith v. Eubanks

• Decision Date: 25 April 1884
• Citation: 72 Ga. 280
• Court: Georgia Supreme Court
• Parties: SMITH et ux. v. EUBANKS & HILL.

72 Ga. 280

SMITH et ux. v. EUBANKS & HILL.

Supreme Court of Georgia.

April 25, 1884

February Term, 1884.

1. While inartificially drawn, the declaration in this case was in effect, an action on the case for damages consequent upon the breaking of the terms of a lease, and such action sounds in tort. The contract of lease is set out by way of inducement, and the breaches of duty thereunder are, first in failing to put the property in such condition as to be tenantable for the purpose for which it was leased, and which the defendants had agreed to do; and, second in turning the plaintiffs out of possession before the lease had expired.

2. In such an action, a general statement on the part of one of the plaintiffs, while a witness on the stand, that he was damaged three thousand dollars, was inadmissible.

( a. ) But the court does not certify this ground of the motion before granting the rule nisi. The motion for new trial, the rule nisi thereon and qualifications thereof, are matters of record; and where the bill of exceptions and record differ in relation to matters properly of record, the latter will prevail.

( b. ) The witness could swear to his daily receipts and profits, to show the amount of his damage.

3. Where counsel for defendants had drawn from one of the plaintiffs, as a witness on the stand, the names of a large number of his customers, and night was approaching, the fact that the judge jestingly remarked, as a reason for adjourning, that counsel seemed to be taking a census, and he would adjourn the case until next day, was immaterial, and could not reasonably mislead the jury or hurt the defendants. This is unlike 61 Ga. 359.

4. It was legitimate to prove damage from want of water, which according to plaintiffs' version of the contract of lease, defendants had agreed to supply, the purpose of the lease being for a wagon and stock yard.

( a. ) Failure to comply with the terms of the lease and damage therefrom, are enough to set out in the declaration, without specifying every item.

5. A husband having made the contract of lease individually, but having taken out a warrant to dispossess plaintiffs as agent for his wife, in an action for damages based on the failure to perform the duties imposed by the contract, and on the eviction under the warrant, the husband and wife were properly joined as joint tort-feasors, unless a plea of misjoinder had been entered and established by legal proof.

6. There was no error in charging, " You will look to see if there are breaches of contract. Plaintiffs complain that it was broken in two ways: first, that defendants were to erect certain buildings, stalls, blacksmith shop, and supply plenty of water, and that this was not done. Did defendants fail in any one or more of these? Then there was a breach of contract, and to the extent of plaintiffs' damage, they would be entitled to recover."

7. It was error to charge that, in estimating the damages resulting from an unlawful and wrongful eviction of a lessee prior to the expiration of his lease, the jury could consider profits made after the eviction, by parties subsequently occupying the premises, as a basis of calculation.

( a. ) Evidence of patronage after the eviction and of the number of wagons, cattle, etc., received in the yard thereafter, would be admissible to show that the railroads built through the surrounding territory had not materially lessened the wagoning and cattle and sheep driving which had previously existed, in rebuttal of proof to the contrary; but the probable profit of the evicted lessee could not be measured by the profits of their successors.

8. Where a warrant to dispossess certain persons as tenants holding over, was sued out, and a counter-affidavit and bond given, but subsequently, the defendants relinquished the possession under protest, no harshness or oppression of any sort having been resorted to, while the persons evicted might sue and recover legitimate damages flowing therefrom, if they were not, in fact, tenants holding over, still, it was error to submit to the jury the question of oppressiveness in the eviction.

( a. ) The measure of damages in such a case would be what the lessees evicted could have cleared had the eviction not taken place, but they could not recover punitive or exemplary damage for oppression or harsh treatment, in the absence of any evidence thereof.

Eubanks & Hill brought suit against David Smith and his wife Jennie Smith. The body of the declaration was as follows:

On the first day of July, 1879, plaintiffs leased from defendants for one year next ensuing the following property (describing it); and the rental to be paid for said property was two hundred and forty dollars, payable monthly. Defendants undertook and agreed to immediately put said premises in good, tenantable condition, to furnish a good business house for a grocery store, a separate room for a bar-room, a separate room for a bed-room, a good house for wagoners, good stalls sufficient to hold one hundred head of horses; to dig wells, to furnish an abundant supply of fresh, pure water for man and beast, to run a partition fence through said lot, making two lots thereof, one for wagons and one for stock; to supply all the doors with good locks, and to build on said lot a blacksmith shop for the use of plaintiffs, the said plaintiffs to have the exclusive possession, use and control of said lot, and all the improvements thereon, and to be erected thereon as aforesaid, for the rent and price aforesaid. Plaintiffs went into possession of said leased premises on said first day of July, 1879, and promptly paid the rental according to the agreement, and, although often requested so do, the defendants, not regarding their said promises and undertakings in this regard, but contriving to injure and wholly ruin plaintiffs, failed and refused to put and keep said premises in good tenantable condition, and to make said several impropements. Defendants did build the blacksmith shop upon said lot, but immediately, without the consent of plaintiffs, rented it to other parties, and received rent therefrom.

Plaintiffs further say that, on the 1st of December, 1879, defendants rented the whole of said premises to J. C. Hess, and on 1st of January, 1880, defendants took possession of said premises, and ousted plaintiffs therefrom, under protest and against the wishes of plaintiffs, and plaintiffs then and there gave defendants notice that plaintiffs would hold defendants liable for all damages, both for the non-compliance with the contract of lease, and for the ouster and all resulting damages to the damage of plaintiffs, twenty-five hundred dollars, etc.

To this declaration defendants demurred on two grounds:

(1.) Misjoinder, because the declaration was founded in both contract and tort.

(2.) Because no cause of action was plainly, fully and distinctly set forth. The demurrer was overruled.

It is unnecessary to detail the evidence, further than to state that plaintiffs' testimony indicated that the contract was made with D. Smith, and his real estate agent notified them subsequently that he had rented to another; but the warrant to dispossess them was made by Smith, as agent for his wife; that they filed a counter-affidavit, but subsequently yielded possession under protest. As to the making of the contract and the items of damage set out in the declaration, the evidence was conflicting.

The jury found for the plainstiffs $1,000.00. Defendants moved for a new trial, on the following among other grounds:

(1.) Because the court refused to sustain the demurrer to plaintiffs' declaration on the two grounds above stated.

(2.) Because the court admitted the following evidence of Reuben Hill over objection of defendants: " I took in from thirty to seventy-five dollars per day, and my profits were at least ten dollars per day, and were increasing daily, before water gave out. … Have made fifteen dollars per day profit on the bar… I was injured three thousand dollars by having no water and having to give up. … The water giving out injured my trade two-thirds or more." [As to this ground, the court certified as follows: " My recollection is, that the error complained of in second ground as to Hill's testimony as to three thousand dollars was withdrawn from the consideration of jury, or regarded on all sides as out of the case, the witness having stated it voluntarily; as I know, if objection was distinctly made, I would not have permitted such testimony to remain in the case; but precisely how it transpired, my memory does not serve me." ]

(3.) Because the court erred in remarking aloud and in the presence of the jury, while defendants' counsel was questioning the plaintiff, Hill, who was then a witness being subjected to cross-examination, " Colonel Thomson seems to be taking the census," said remark being calculated to mislead the jury. [As to this ground the court certified as follows: " The remark I made complained of as error in third ground of motion happened in this way: The witness Hill, had been on the stand a long time; it was nearly or quite night. I had not before adjourned until next day, because I wanted to complete...