55 S.E.2d 872 | Ga. Ct. App. | 1949
There was sufficient evidence to authorize the jury to find for the plaintiffs, and the court erred in granting the motion to dismiss the case, in the nature of a motion for nonsuit.
By amendment the plaintiffs added the following allegations, which were in substance: that they had been renting the defendant's premises since 1942 at the rate of $25 per month. They agreed to exchange houses on May 21, 1947, and the rent was fully paid to that time, as the plaintiffs had tendered the rent on May 6, 1947, to the defendant but she had refused to accept it because she was willing to forego the rent in order to get the house on May 21. The names and addresses of the workmen who tore off the roof are unknown to the plaintiffs but known to the defendant. The value of their property before the damage was $900 and the value immediately thereafter was nothing, the property being a total loss to the plaintiffs. The plaintiffs attempted to cover their property with rugs to protect it from the *295 rain and further tried to protect the property by putting it in that part of the room where the rain water did not penetrate the greatest, but their efforts were in vain. The defendant admitted the damages to the plaintiffs and she had the furniture removed to a repair shop to have it repaired but for some reason she failed to do so and later returned the property to the plaintiffs.
No demurrers were filed in the case. The plaintiffs introduced their evidence, and the defendant's motion that the case be dismissed, in the nature of a motion for nonsuit, was granted, and the plaintiffs excepted. 1. The plaintiffs' evidence was to the effect that they had been living in the defendant's house on Mayson-Turner Avenue, as tenants, from some time in 1942 until May 21, 1947; in October, 1946, they received from the Office of Price Administration a notice to vacate the premises within six months from October 7, 1946 (that is, by April 7, 1947); on April 15, 1947, the plaintiffs paid rent on the house up until May 6, 1947; on May 6, the plaintiffs tendered their rent which was refused on the ground that the defendant was going to exchange houses with the plaintiffs; that is, the defendant would move into her house on Mayson-Turner and the plaintiffs would move into the house which the defendant was renting on Simpson Street; the defendant intended to remain in the house on Simpson Street until the rent on that house was due on May 19; on May 19 the plaintiffs went to the real-estate agency in charge of the house on Simpson Street and rented it; they were ready to move on that date, but the defendant stated that she could not move, saying, "we are not ready to move. I have to put a new roof on it [the house in which the plaintiffs were living]." The defendant had had carpenters making various repairs on her house on Mayson-Turner for approximately two weeks prior to May 19, but on that date they removed the roof in spite of the remonstrances of the plaintiffs. On May 20, a heavy rainstorm occurred and the rain water leaked into the house and ruined the property of the plaintiffs therein, although the plaintiffs attempted to cover their property with rugs to protect it.
Under this evidence and the rule laid down in Metzer v.Connally *296 Realty Co.,
2. The gist of the plaintiffs' action is not one seeking to recover damages for injuries resulting from a failure on the part of the landlord to keep the premises in repair, after notice. The plaintiffs were the tenants of the defendant. So far as appears from the evidence the house in which they lived was acceptable to them, but the defendant to suit her own convenience and purposes had the roof removed while the plaintiffs were still in possession of the premises with no precautions being taken to protect the plaintiffs' property. "`A covenant for quiet enjoyment is necessarily implied in every lease.' Adair v.Allen,
3. "Where by a breach of contract one is injured, he is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence" (Code, § 20-1410), and "where by negligence one is injured, he is bound to lessen the damages as far as is practicable by the use of ordinary care and diligence; but this does not apply in cases of positive and continuous torts" (§ 105-2014). "Of course, in every case, whether in suits for personal injuries or injury to property, it will be for the jury to determine whether the plaintiff as a prudent man ought to have taken steps to avoid the damage." Mansfield v.Richardson,
The plaintiffs proved their case substantially as laid, and the court erred in taking the case from the jury by dismissing it on motion in the nature of a motion for nonsuit.
Judgment reversed. Gardner and Townsend, JJ., concur.