97 Ga. 764 | Ga. | 1896
Spencer and others, as receivers of the East Tennessee, Virginia & Georgia Railroad Company, brought suit against the Brunswick Grocery Company, to recover $900.00, alleged to be due for rent of a brick warehouse in Brunswick, from August 1st, 1893, to May 1st, 1894, at $100.00, per month. The Brunswick Grocery Co. filed its answer, admitting the indebtedness for rent, as claimed, but alleged, “that the plaintiffs ought not to recover, for the reason that the defendant rented the premises from the plaintiffs upon the understanding that the storehouse was in a safe and sound condition, free from all leaks, and suitable for the purposes for which the defendant desired to use the same; that the plaintiffs knew for what purposes the same was rented by the defendant, and that after said storehouse was rented and occupied by the defendant for only a short space of time, owing to the unsound condition of the roof upon said building, the storehouse was flooded with rain-water, and the property of the defendant to the amount of $1,624.70 was injured and damaged, and became a total loss; that the condition of the roof was unknown to the defendant at the time of renting said property, but plaintiffs
The evidence was somewhat conflicting as to the amount of diligence exercised by the plaintiffs in repairing the roof, but there was no evidence that the roof was in an unsound or unsafe condition at the time of rental or when it was injured by the storm. The $43.00 paid by defendant for repairing the elevator was admitted by plaintiffs to be a just deduction from the rent, and it seems that the original suit for $900.00 rent was converted into- a suit for $1,200.00, we presume by amendment, though no such amendment appears in the record. But the judge in his charge stated that it was admitted that $1,200.00 was due for rent, and the verdict for the plaintiffs was for $1,157.00, and it was not excepted to as being in excess of the amount sued for; so that it is a reasonable presumption that the declaration was amended in this respect. The defendant filed a motion for a new trial, upon the statutory grounds, and upon alleged error in numerous extracts from the charge of the court. The motion was overruled, and the defendant excepted upon all the grounds set out in the motion.
In the extracts from the charge excepted to, in the 4th, 5th, 7th, 8th and 13th grounds of the motion for a new trial, the court charged the jury the principles of law substantially as set out in the first head-note, which we think sound in principle and sustained by the decisions of this court in the cases of Guthman v. Castleberry, 49 Ga. 272, and Whittle v. Webster, 55 Ga. 180.
The charge complained of in the 10th ground of the motion for new trial was as follows: “That the true test of damages, if any, sustained by the defendant would be the difference between the market value of the goods before they were damaged and the price they were sold for after-
Under the view which we take of this case, it is not necessary to set out or discuss the other exceptions to the charge. The case made by the defendant in its answer, and the cause which it sought to establish by its testimony, are so entirely different that neither one can support the other. In the pleadings, it alleges as its only source of injury and damage the unsound condition of the roof of the building, which was rented on the understanding and with the warranty that it was safe and sound and free from leaks. There was no testimony whatever that the roof was unsound at the time of renting, or that it failed to come fully up to the alleged warranty. The evidence established the fact that the building was unroofed by a very violent and unusually severe storm. There is not even an intimation that its unsound condition contributed to its unroofing. The evidence further discloses that a very small portion of the damages claimed was caused by the storm which unroofed the building. The defendant cannot recover the damages caused by this storm, because it was not alleged or proved that it had a contract with the plaintiffs to protect it against such an unforeseen and extraordinary occurrence-. 'The greater part of the damage to the goods was caused by a heavy rain four days after the storm, when the rain-water poured through the open places in the injured roof which
The verdict was demanded by the evidence, and there was no error in refusing a new trial.
Judgment affirmed.