57 Ga. App. 479 | Ga. Ct. App. | 1938
John M. Hulsey and Mrs. Mary D. Neese instituted suit against John C. Harrington to recover an amount alleged to be due to the plaintiffs as landlords by the defendant as tenant for the period from March 1, to December 31, 1933, under a written contract of lease of a store building in the City, of Gainesville, for a period of five years from July 15, 1930, at a rental value of $90 per month for the period of the lease subsequent to July 15, 1932. The defendant in his plea admitted that he had rented the premises under the alleged written contract of lease, but denied that he was indebted to the plaintiffs for the rentals sued for. He alleged that he occupied the building under his contract of lease until August 1, 1932, when he moved out and vacated the building and thereby “abandoned” the contract, that on or about March 1, 1933, the plaintiffs took possession of the property without the defendant’s consent, resumed possession and control over the premises inconsistent with the defendant’s right of possession and occupation, and on November 1, 1933, without the defendant’s permission and inconsistent with his right of possession and occupation, leased the property to a Mr. Mauney who took possession of the premises under the plaintiffs as landlords. As alleged in the defendant’s plea, the plaintiffs had accepted a surrender of the lease by. the defendant prior to the period for which it is alleged the defendant is indebted to the plaintiffs for rent, and had taken possession of the premises, and that therefore, prior to this period, the rental contract had been terminated, and during this period the defendant did not hold the premises as tenant and was not indebted to the plaintiffs for rentals for this period. It appears undisputed from the allegations in the petition and the answer of the defendant that the building had been leased to him under a written contract for a period of five years from July 15, 1930, covering the period of time for which the rentals are sued for, and that the defendant on or about August 1, 1932, abandoned the contract and moved out of the building and vacated the same.
The only witness who testified on the trial was J. M. Hulsey, one of the plaintiffs. The substance of his testimony, which was uneontradicted and undisputed, was that the defendant before he' moved out of the building informed the witness that he intended to vacate, and asked the witness would he take the property back,
The case now before the court was submitted to a jury on the documentary evidence and the testimony of one of the plaintiffs, J. M. Hulsey, the sole witness in the ease. The jury found a ver
It appears that in the brief of the evidence brought to this court the lease contract is copied in full. The .defendant in error insists that as this lease contract appears as an exhibit to the petition, it is a violation of the rule with reference to the preparation of a brief of evidence, as required by the Code, § 70-305, for this lease contract to be copied in the brief and that for this reason the brief of evidence should not be considered. This court understands that the rule in the Code, § 70-305, which provides for a mere reference in the brief of evidence to documentary matters which appear as exhibits in the pleadings without copying them in full in the brief of evidence is for the benefit of the court and not of the parties. Hargett v. Muscogee Bank, 32 Ga. App. 701 (124 S. E. 541). It is therefore not mandatory on the court, at the instance of counsel, to disregard the entire brief of the evidence and refuse to consider it where counsel, in preparing the brief of evidence, has recopied therein in full a piece of' documentary evidence which is attached as an exhibit to the pleadings, and has failed to omit it from the brief of evidence, and has failed, in the brief of evidence, to refer to the document as it appears as an exhibit to the pleadings. This court refuses to accede to the suggestion made by counsel for the defendant in error that the brief of evidence be disregarded.
Taking the testimony of the sole witness, J. M. Hulsey, one of the plaintiffs, and construing it most strongly against him, it appears conclusively and without dispute that the defendant tenant abandoned his contract of rental and vacated the premises and did
It is well settled that where a tenant has abandoned the rented premises and the landlord has refused to accept the abandonment as a surrender of the term, and the tenant has agreed either expressly or impliedly to the landlord’s reletting the premises for the tenant’s benefit, that the act of the landlord in so doing does not amount to an acceptance by him of the tenant’s surrender of the lease. Baldwin v. Lampkin, 14 Ga. App. 828 (82 S. E. 369). There has not been brought to our attention any decision of the Georgia courts as to the effect of the landlord’s reletting the rented premises without the knowledge or consent of the tenant, either express or implied, where the landlord has expressly refused to accept the tenant’s abandonment of the property as a surrender of the term and has notified the tenant that he would hold him to the lease. The landlord’s reletting the premises, without the express or implied consent of the tenant, thereby reducing his damage,
' The judgment for the plaintiffs in the distress warrant proceedings was an adjudication that the defendant’s term as tenant was not terminated by his abandonment of the rented premises. The plaintiffs do not have to rely upon this adjudication in this case as here presented, since it appears conclusively and undisputed from the evidence adduced on the trial that the defendant’s term was not terminated by his abandonment of the property, and his attempt to surrender the lease, and the plaintiffs did not afterwards accept a surrender.
Judgment reversed.