52 Ga. App. 146 | Ga. Ct. App. | 1935
Lead Opinion
The plaintiffs brought suit in the municipal court of Atlanta, claiming that the defendant was due them $25 per month rent for two and one half months on certain premises occupied by him. The jury returned a verdict for the full amount sued for. The defendant moved for a new trial, which was overruled, and the appellate division of the municipal court of Atlanta affirmed the judgment. The exception here is to that judgment.
I. The defendant was occupying the premises of the plaintiffs as a tenant at will at a specified monthly rental, and being unable to pay his rent notified the plaintiffs of that fact and stated that he would vacate the premises. The plaintiffs consented for the defendant to remain in the premises for about two years without the payment of any rent in order to keep their premises occupied, with the understanding that the defendant should be given thirty days’ notice before being required to vacate. On May 25, 1934, one of
But as the defendant continued to occupy the premises after the expiration of thirty days from May 25, 1934, when he was notified that he would have to pay rent, which plaintiffs later told Mm would be $25 per month, there was an implied contract to pay .this amount of rent. So all the defendant would be liable for would be at the rate of $25 per month from June 25, 1934, until he vacated on July 31, 1934. This would amount to $30, less the undisputed amount of $15 expended by the defendant for repairs, which would leave a balance of $15.
The judgment for $62.50 was not authorized, but if the plaintiffs will write off $47.50 from that judgment, reducing the amount of the recovery to $15, before or at the time the judgment of this court is made the judgment of the lower court, the same will stand affirmed. On failure to do this, the judgment will stand reversed. Let the defendants in error pay all costs of the writ of error.
Judgment affirmed on condition.
Dissenting Opinion
dissenting. Assuming, but which is not conceded, that the notice of May 25, in which the defendant was requested to pay rent from June 1st at the rate of $30 per month, amounted to notice to him to vacate the premises or to a termina
The question therefore is, did the defendant, in remaining in possession of the premises after the expiration of 30 days from May 25, do so under an implied agreement to pay rent at $25 per month, or in any amount, as proposed by the plaintiffs? The evidence appears to be insufficient to authorize an inference that at any time prior to the expiration of 30 days after May 25th, i. e. prior to June 25th, the plaintiffs offered to make a contract of rental with the defendant at a rental of $25 per month, or any other amount, for the period beginning at the expiration of the defendant’s term, assuming that the term expired on June 25. The evidence therefore is insufficient to authorize the inference that the defendant, in remaining in possession of the property after June 25, did so under an implied acceptance of any offer by the plaintiffs to make a new contract for any definite amount as rental. Besides, if the defendant held over after the plaintiffs had proposed to make a new contract for a definite amount to be paid as rent, this did not amount to an acceptance of the plaintiffs’ proposal as respects the- amount of rent to be paid. Where, before the expiration of a tenant’s term, the landlord proposes to the tenant a renewal of the contract at an advanced rental, and the tenant expressly refuses to accept the proposition, and makes a counter-proposition as to the amount of rent to be paid, the mere act of the tenant in remaining over after the expixation of the term does not amount to an implied contract to pay rent during his occupancy after the expiration of the term at the advanced rental proposed. The tenant would be liable only for the rental value of the premises. There is no evidence whatsoever as to the rental value of the premises. Therefore the evidence is insufficient to authorize a verdict for the plaintiffs. I am of the opinion that the court erred in overruling the defendant’s motion for a new trial, and must dissent from the judgment of affirmance.