8 Ga. App. 545 | Ga. Ct. App. | 1911
Mrs. Stephens swore out a distress warrant against Dr. W. J McNaughton, claiming $180 as rent, — $135 for the year
We find no error in the trial which would warrant a reversal of the judgment of the lower court. It is stated in the brief that the defendant was forced to amend his counter-affidavit: This can not legally be- said to have been the case; because no amendment of the counter-affidavit was necessary, under the ruling in Johnston v. Patterson, 86 Ga. 725 (13 S. B. 17), and cases therein cited. The only real question raised by the record is whether the court erred in not submitting to the jury the question as to whether the defendant was entitled to recoup, as a part of his damages, profits which he might have made by subrenting the place in the years 1907 and 1908. In determining this question it is to be conceded that the plaintiff was bound to make such repairs on the buildings as were actually neeessarj^; and, while the evidence is conflicting, we will assume that the plaintiff did not make all the needed repairs. We may safely assume this because it is evident from the fact that the jury only allowed plaintiff $113, instead of $180, which she claimed, that they made a deduction of $67 for the injury which the defendant had suffered by the plaintiff’s failure to make repairs. We think this was sufficient reduction, when it was within the power of this defendant as a tenant to have had the repairs made himself, and set off the necessary expense against his landlord’s claim for rent; and it was his duty, as the damages were consequent upon a
As we stated above, there is no view of the evidence which would have entitled the plaintiff to recover less than she did, unless the jury had taken the defendant’s view that the 15 acres of new ground were included within the contract; and as to this there was a conflict in the evidence. ' Judgment affirmed..