This is an action for damages for breach of covenant in a lease agreement to keep the building in constant good condition and to repair and surrender “in as good repair as the time of the initial occupancy, excepting, however, ordinary wear and tear.” The trial resulted in a verdict for the appellee landlord of some $38,000 actual *881 damages and $20,000 expenses of litigation, from which judgment Raybestos-Manhattan appeals.
1. At the time Friedman purchased the property the warehouse had not been fully constructed, but a 15-year lease had alrеady been signed by the appellant tenant, for whose use the building was being constructed as a brakeshoe relining factory. After some 7 years, and in accordance with assignment provisions in the lease, appellant subleased to Kelly-Springfield Tire Co. as a tire recap factory. Onе of the issues underlying the lawsuit appears to be a dispute between the parties as to the quality of condition in which the premises should be returned at the end of the lease term. In addition to the lease covenants above quoted are provisions that the landlord make structural repairs necessary for safety and tenantability, including the roof and exterior walls, and that tenant is responsible for making all other repairs. Also, tenant has the right to make whatever alterations or improvements are deemed desirable for the conduct of tenant’s business, all improvements tо remain a part of the premises except trade fixtures which can be severed without damage to the property.
None of these covenants are unusual, and all have been the subject of judicial scrutiny at one time or another. The provision for returning the premises in as good condition as received, ordinary wear and tear excepted, was a rule of common law and is usually understood to mean no more or less when inserted in contemporary contracts. It includes that usual deterioration which results from the day to day use of the premises and from laрse of time. Scott v. Prazma, Wyo.,
The appellant tenant is correct in maintaining that
Zeeman Mfg. Co. v. L. R. Sams Co.,
Applying the above principles we find that the court erroneously excluded the evidence sought to be presented in the first, ninth and fifteenth enumerations of error. As to the first, the witness Pierce attempted to testify that there were certain structural defects on the еxterior of the building, allegedly caused by improper expansion of steel members within the wall, as well as other testimony relating to alleged sinking of the loading ramp. The court held that it was “going back too far to determine what occasioned cracks” observed by the witness at about the timе of trial which was some five years after the termination of the lease. In the fifteenth enumeration, the defendant tenant then sought to prove the same point by méans of the recall of an earlier witness, the engineer Chapman, for his own opinion evidence of structural defects. Chapman, although he had inspected the project in both 1969 and 1975, was not allowed to be recalled. (The *883 lease ran from about 1960 to 1975.) Again, as set out in the ninth enumeration, Chapman, an engineer of the sub-tenant, was not allowed to testify as to the useful life of various items allegedly damaged, such аs the cyclone fence and the asphalt parking lot, apparently on the ground that the two corporations were not in like manufacturing circumstances. There was substantial evidence that they were: for example, both firms used large 18-wheel trucks, which it was contended was an antiсipated use, and which was therefore ordinary wear and tear as to the asphalt and also the loading docks.
In Miller v. Belknap,
Thus it was error to exclude evidence introduced for the purpose of showing what a reasonable anticipated use would be, and what reasonable depreciation might be expected on the items the repair of which was chargeable to the tenant, as wеll as evidence such as that excluded and complained of in the eleventh enumeration of error, for the purpose of demonstrating that the reasonably to be expected depreciation from ordinary wear and tear would be approximately the same for the two tenants.
2. Exemplary damages can never be allowed in cases arising on contracts. Code § 20-1405. Expenses of litigation may be allowed where the defendant has acted in bad faith, been stubbornly litigious, or caused the plaintiff unnecessary trouble and expense. Code § 20-1404. Attorney fees under this section are, however, generally limited to ex delicto actions. In contract actions, the bad faith referred to has consistently been held by Georgia courts to refer to the conduct of the defendant out of which the cause of action arose, not to his conduct in defending the suit.
Traders Ins. Co. v. Mann,
3. The court also erred, over the request for more time on the part of the attorneys fоr the defendant, in limiting the oral arguments to a half hour on each side in accordance with a local rule of the State Court of Fulton County. Code § 81-1007 provides that in all cases in the superior courts of this state other than felonies counsel shall be limited in their arguments to two hours on a side. Under thе State Courts Act of 1970 (Ga. L. 1970, pp. 679 et seq.) it is specified: “The rules of practice and procedure which are applicable to the superior. courts of this State shall be the rules which govern practice and procedure of the courts which come under the provisions of this Chapter.” Code § 24-2107a. This, of course, applies to the State Court of Fulton County. Code § 81-1007 has been construed to mean as to those courts to which it applies as giving two hours to each side for argument, the trial court having no discretion to limit the argument below this length.
Henry & Hutchinson, Inc. v. Slack,
4. One of the defendant’s earlier requests for production called
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for “production of each and every writing regarding damages to the premises from 1960 to the present.” “Writing” was so defined as to include photographs, following the language of Code § 81A-134 (a). Plaintiff responded, stating in part that the defendant had in its possession “each and every writing directed by plaintiff, his agents or attorneys, to defendant as to damages.” The defendant had no knowledge of 44 photographs of the premises which the plaintiff did not produce, but which it offerеd in evidence on the trial of the case. Defendant moved to exclude these documents and assigns error on their allowance in evidence over its objection, but defendant made no motion for continuance, and plaintiff contends, on authority of
Crosswell v. Arten Const. Co.,
The plaintiff did not make a proper objection and did not produce the 44 photographs which were clearly within the purview of the request for production, nor did it move for a protective order. Sanctions, such as refusal to admit the exhibits in evidence, should cleаrly have been imposed. However, whether the failure of the defendant to specifically ask for a continuance to examine the photographs would, as contended, allow their admission in evidence without such time granted we need not decide, since the case is reversеd on other grounds.
5. Testimony that the plaintiff was overheard to tell a third party that he wanted the fence replaced and a buffing and drying room placed on the premises by the defendant removed was excluded on the ground it was hearsay, and this is urged to be error on the ground that the statements wеre admissions against interest. If the latter, no proper foundation was laid to exhibit this fact. So far as appears the remarks were neither hearsay nor admissions against interest. Their exclusion is not a ground for a new trial.
6. The defendant counterclaimed for an overcharge in taxes whiсh was admitted by the plaintiff and denominated a mistake in computing the fiscal year. Since the trial court directed a verdict for the defendant on this claim, and since the record fails to shpw any harm to the defendant in not allowing further pursuit of the matter by cross examination, no error appears. Grounds 13 and 14 are without merit.
7. Ground 10, not having been argued, is treated as abandoned. Grounds 6 and 7 show no cause for reversal. Grounds 4,5 and 12 need *886 not be passed upon since the case is to be tried again.
Judgment reversed.