35 Ga. App. 51 | Ga. Ct. App. | 1926
The present suit arose upon the issuance of a distress warrant in favor of Cox & Simpkins against Walter M. Lowney Company of Georgia, and the filing of a counter-affidavit by the defendant. The rented premises consisted mainly of the basement of a building, the upper part of which was occupied by the plaintiffs. The lease contract was in writing and covered the period from January 1, 1920, to July 6, 1924. The defendant occupied the premises until about June 1, 1921, and paid the rent of $100 per month until that time. It refused further payments, and the plaintiffs distrained. In the defendant’s counter-affidavit it was alleged that the premises were leased from the plaintiffs to be used in conducting a wholesale candy business, and that the use to which the property was to be put was known by the plaintiffs, and that “said property was not adapted to the uses intended;” that during heavy rains a large amount of water would flood the premises, and “said premises would become damp and in such condition that the candies stored [therein] would spoil and deteriorate and become worthless;” that the plaintiffs were given notice of “said condition, and were requested to repair such defects,” but failed to put the premises “in a condition so that the same could be used by this defendant;” that at the execution of the lease contract the defendant was not aware that the premises contained any of the defects mentioned, but believed that they were in a good state of repair and “adapted for uses which the defendant was then intending to make of the property;” that “plaintiffs’ failure to make repairs amounted to an eviction of defendant, as it was impossible to remain in said premises, because of the large amount of water and moisture which would regularly flow into said premises during rains; that on account of said condition it was necessary for defendant to abandon said premises after this suit was filed;” that there was thus “a failure of consideration
According to our construction of the evidence, the jury could have found that the dampness or moisture which spoiled the candies and rendered the premises unfit for use as a place for the storage of such commodity resulted not from leaky walls or overhead or other defects in the premises, but from a “sweating” due in some way to a mere unsuitability of the basement for such use. On the other hand, there was evidence from which the jury could have inferred that the walls were leaky or that there were other defects in the basement, and that the untenantability of the premises was the result of the plaintiffs’ failure to make needed repairs. This inference, however, was not demanded, for, as we have just indicated, the evidence would have authorized a finding that the basement was not in need of repairs, but was inherently unsuitable as a place to store candy.
In view of the issues as thus developed by the evidence, we are
We can not agree with counsel for defendant in error that the excerpt complained of should, by itself or in view of the entire charge, be construed as referring only to the duty of the landlord to put or keep the premises in repair. Such may have been the intention of the learned judge who presided in the case; but we are of the opinion that the jury could have construed the charge, and probably did construe it, as telling them that it was the duty of the landlord to malee the premises suitable for such purpose, whether they were defective and in need of repair or not, and also to keep them suitable, by repairs, upon notice of any defect. The duty should have been limited to repairs only.
There was no error in any of the charges complained of in the other grounds of the motion for a new trial, except in so far as they may have been at variance with the principles above enunciated, and it is therefore unnecessary to examine them in detail. One or more of the contentions for the plaintiffs in error should have been made by requests to charge, in order to present any question for decision thereon. From what has been said, the court erred in overruling the plaintiffs’ motion for a new trial.
Judgment reversed.