Wright v. Kilgo, 19460
| Citation | 212 Ga. 712,95 S.E.2d 7 |
| Decision Date | 10 October 1956 |
| Docket Number | No. 19460,19460 |
| Parties | W. H. WRIGHT v. O. B. KILGO. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The verdict is supported by the evidence.
2. The assignments of error on the charges of the court, complained of in the second and third grounds of the amended motion for a new trial, are without merit
Russell O. Clay, Tallapoosa, E. B. Jones. Jr., Bremen, for plaintiff in error.
Donald B. Howe, Harold L. Murphy, Buchanan, for defendant in error
O. B. Kilgo brought an equitable action against W. H. Wright to enjoin the defendant from prosecuting two suits in a justice of the peace court on two notes signed by Kilgo and another, and to cancel these notes and other rent notes. On the trial of the case the jury returned a verdict in favor of the defendant, 'with credits to plaintiff of $110 per month on notes to present date.' On this verdict the court entered a decree denying the plaintiff's prayer for an injunction, and decreeing satisfied and discharged 13 of the notes executed by Kilgo to Wright. The defendant's motion for a new trial as amended being denied, he prosecutes the case to this court.
1. The evidence discloses that Kilgo and another in January, 1952, executed to Wright 60 notes for $110 each, representing the monthly rent of two buildings rented by the defendant to the plaintiff and another. The plaintiff testified that in December, 1954, he moved out of and abandoned the premises and surrendered the keys to the defendant, the lessor, who accepted the keys and took possession of one of the buildings and moved some of his personal property into the same, and shortly thereafter rented the other building to another; that, since the plaintiff has moved out, he has never had any possession of the premises, nor did the defendant ever ask his permission to rent the building to the K & W. Milling Co. The defendant testified that, though the lessee turned the keys over to him, he never agreed to release the lessee from his obligation to pay the rent notes, not did he agree to accept the surrender of the premises, but subsequently demanded payment of the rent notes.
On the issue of whether or not there had been a surrender of the leased premises and acceptance by the defendant, the evidence was in sharp conflict. The effect of the jury's verdict and decree of the court was to cancel all the past-due notes up to the time of the trial. The rule in this State appears to be that if, pending a tenancy, the tenant becomes dissatisfied and offers to surrender possession to the landlord, and the landlord thereafter remains in possession or exercises a control over the premises inconsistent with the tenant's right of occupation, he thereby discharges the tenant from liability for future rent, and a cancellation or rescission of the contract is thus effected by agreement of the parties, express or implied. Harris v. Dub, 57 Ga. 77; Ledsinger v. Burke, 113 Ga. 74, 38 S.E. 313; Rucker v. Tabor, 127 Ga. 101, 56 S.E. 124; Johnson v. Watkins, 26 Ga.App. 759(1), 107 S.E. 341. In the Rucker case, the plaintiff leased to the defendant certain land, and the defendant abandoned the same, whereupon the plaintiff placed tenants in possession of a part of the land that the defendant...
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