Robinson v. Odom, 35 Ga. App. 262

Robinson v. Odom

35 Ga. App. 262 | Ga. Ct. App. | 1926

Bell, J.

W. W. & C. E. Odom filed suit in the municipal court of Macon against Carl Robinson upon a promissory note dated September, 1924, and due October 1, 1924, for $40. The note recited that it was given “for rent 111 Ninadel Ave.,” and contained the stipulation, “this note to be surrendered in case the property is rendered untenable [untenantable] by fire.” In the lower left-hand corner, opposite the maker's signature, were the words and figures “No. 1 Month of October, 1924.” It provided for the payment of interest after maturity at eight per cent, per annum and of attorney's fees, and contained a waiver of homestead. The defendant filed an answer, and then amended it. Thereafter the court sustained a general demurrer thereto, and, on the introduction of the note in evidence, directed a verdict for the plaintiff. The defendant’s certiorari was overruled and he excepted. The question for determination in this court is whether the answer as amended set forth any valid defense to the suit. The answer alleged, among other things, two sets of facts which we will enumerate as follows: (1) “That on or about September 3, 1924, plaintiff and defendant entered into a contract whereby plaintiff was to rent to defendant No. Ill Ninadel Drive, Macon, Ga., for one year from October 1, 1924, at $40.00 monthly, evidenced by rent notes, and plaintiff further contracted with defendant that should defendant within three months next after October 1, 1924, wish to purchase said premises, defendant might do so at the price of $4,200.00, and all rents paid plaintiff by defendant between October 1, 1924, and the election period or date within said ninety days period, should apply on said purchase price of $4,200.00;” that the plaintiff represented that the premises were properly and sufficiently equipped with a modern sanitary sewerage system adequate in every way to discharge the sewerage and garbage from the premises, whereas “same was connected up with a cesspool system of sewerage” and “was wholly inadequate, in that the construction of such cesspool sewerage connections, erected and maintained for the purpose of draining off such premises, would not carry off the sewerage from the premises, because same did not have the required and necessary outlet to drain the premises;” that the actual facts in regard to the sewerage system could only be determined and known by a personal inspection and use of the premises, and that the defendant was not apprized thereof until *265after the execution and delivery of the notes; that he never at any time occupied the premises, but ascertained the facts by personal inspection and from the tenant who was then in possession thereof; that the defendant thereupon notified the plaintiff that “under the circumstances said premises were unsatisfactory to him and to his family,” and, “as a result of the plaintiff’s said misrepresentations, the consideration of said note sued on has utterly and entirely failed.” (2) That the defendant, on discovering the facts, demanded a release from his contract and a surrender of the notes. The plaintiff refused such demand, but promised to “place said premises in a satisfactory condition.” Shortly thereafter the defendant brought one Burns to the plaintiff as a prospective purchaser. Plaintiff “then came to defendant and demanded the defendant’s option to purchase, . . in order that plaintiff might sell said premises to said Burns. Defendant surrendered his option to plaintiff with the further understanding that plaintiff was to return to defendant all his twelve rent notes running through September 30, 1925; which plaintiff never did. Defendant pleads said statement of facts as a complete release to said rental contract, and as a full defense to this action.” On the subsequent refusal of Burns to purchase because of the character and condition of the sewerage system, “plaintiff demanded rent of the defendant and refused to surrender up his rent notes.”

As we construe the answer, the allegations referred to in paragraph 1 of the above synopsis are not made as a plea of fraud, but are relied on merely for the purpose of showing a failure of consideration. In view of the written contract, the parol representation could not be pleaded; and, whether the allegations as to the character of the sewerage system and the defendant’s refusal to install a proper system could be construed as setting up a breach of the landlord’s implied covenant as to the condition of the premises, and whether a breach of such covenant before entry would justify the tenant’s refusal to enter and relieve him, are questions not raised by counsel for the plaintiff in error. See, in this connection, Barnes v. Strohecker, 17 Ga. 340; s. e. 21 Ga. 430; Epping v. Devanny, 28 Ga. 422; Lewis v. Chisholm, 68 Ga. 40 (4); Thompson v. Walker, 6 Ga. App. 82 (64 S. E. 336). Construing the answer as it is construed by the attorney for the plaintiff in error, its author, we conclude that no valid defense was pleaded by *266the allegations thereof as enumerated in paragraph 1 of the above statement. We entertain a different opinion, however, as to those stated in paragraph 2. If the option was in writing, as it is presumed to have been, its surrender was a sufficient consideration for the promise to return the notes, and the averments as made show a mutual rescission of the rent contract. This is a valid defense. The municipal court erred in striking the defendant’s answer, and the superior court erred in not sustaining the certiorari. It is unnecessary to add anything further to what is said in the head-notes.

Judgment reversed.

Jenlcins, P. J., and Stephens, J., concur.