Roberson v. Weaver , 145 Ga. 626 ( 1916 )

Evans, P. J.

(After stating the foregoing facts.)

1. The progress of the dispossessory warrant was arrested by ' the filing of a counter-affidavit that the rent claimed was not due. A warrant to dispossess a tenant is converted by the filing of a counter-affidavit into mesne process, and the further procedure partakes of the nature of an ordinary suit, in respect to the amendment of the pleadings. Civil Code of 1910, § 5706; Mitchell v. Masury, 132 Ga. 360 (64 S. E. 275).

2. The statute provides that a defendant can not set up in an action any new fact, or defense, of which notice was not given by the original plea, unless he shall attach to the amendment an affidavit that he did not omit such new facts or defense for the purpose of delay, and that the amendment is not now offered for delay, or unless in the discretion of the court the circumstances of the case or substantial justice between, the parties require that the amendment be allowed without attaching such affidavit. Civil Code of 1910, § 5640. The court allowed the counter-affidavit to be amended without the affidavit referred to in the cited section. The amendments contain pleas of recoupment. It appears that on the filing of the counter-affidavit the tenant instituted an equitable action against the landlord, alleging that by reason of his violation of the obligation imposed on him by the contract he had endamaged the tenant in a sum exceeding the amount due for rent, a failure to pay which furnished the ground upon which the dispossessory warrant was issued; and praying judgment for such excess. She alleged that on the trial of the dispossessory proceedings she could not obtain judgment for such excess. The tenant’s equitable petition was dismissed, and the judgment of dismissal was affirmed by this court. Weaver v. Roberson, 134 Ga. 149 (67 S. E. 662). The writer dissented from that judgment, and still adheres to the views expressed in his dissent. But the judgment pronounced in that case is binding upon the parties. The amendments in the main undertook to set up matters of recoupment, which the tenant unsuccessfully had attempted to do in her equitable petition. Under these circumstances we do not think that the court abused his discretion in allowing the amendments filed without an affidavit that the defense therein set up was not filed for the purpose of delay.

3. Over objection the defendant was allowed to amend her counter-affidavit by alleging that she admitted that on August 3, 1907, she rented from the plaintiff the premises set out and described in his affidavit to evict her; that she contracted to pay $200 per month in advance on the first day of each month, without grace, and that she failed to pay rent when the same became due on January 1, 1908; '"hat she refused to pay the installment of rent for January, 1908, on demand, and that she refused, when so demanded, to deliver the possession of the premises, as set out in the affidavit to evict her; that the rent is still unpaid, and would be due but for tbe counterclaim against the plaintiff for his failure to make the additions and repairs to the premises under the contract, as is more fully set out in her amendment to the original counter-affidavit; and that she held possession under the contract until January 1, 1909. The objection to the allowance of this amendment was that its only purpose was to shift the burden of proof, so as to give the defendant the right to open and conclude. In his motion for new trial the plaintiff complained that the court erred in allowing the defendant to open and conclude. A defendant, in order to have the right to open and conclude, must in his plea admit enough to make out a prima facie case for the plaintiff, and the admission must be made and the right to open and conclude asserted before the plaintiff submits any evidence. Central of Georgia Railway Co. v. Morgan, 110 Ga. 168 (35 S. E. 345). In the amendment filed the defendant admitted the tenancy and her covenant to pay rent, that the landlord had demanded possession of the premises, that she had refused on demand to surrender the possession, and that she was due the rent unless she was entitled to recoup the damages which she set up in her counter-affidavit. TJpon these admissions the plaintiff would have been entitled to a judgment unless the defendant proved her counterclaim. The defendant had a right to make these admissions in writing before the case was opened for the introduction of evidence, for the purpose of asserting her right to open and conclude. We think that the amendment was properly allowed, and there was no error in awarding the defendant the opening and conclusion.

4. The landlord had not begun the enlargement of the hotel on January 1, 1908. The tenant refused to pay in advance, as stipulated in the lease, the rent for the month of January. In the amendments to her counter-affidavit she defended her refusal to pay the rent for that month on the ground that she had suffered damages in a sum greater than the rent, on account of the landlord’s violation of his covenants in the lease. She alleged that he refused to enlarge the hotel and its equipment as provided in paragraphs 11 and 13; that if he had made the additions stipulated in paragraph 11, the value of the term for which she had leased the hotel was $200 per month in excess of the rent contracted to be paid. She further alleged that the landlord’s failure to make the repairs specified in paragraph 10 had reduced the value of the premises $50 per month from the date of the lease. She further averred a failure of the landlord to comply with his covenants as expressed in paragraph 12, but laid no damages for the alleged violation separate from that involved in paragraph 11. Judgment was also prayed for excess of damages over the rent. The main issue to be determined by the jury was whether the tenant had sustained any damage at the time of the suing out of the dispossessory warrant, and, if so, what was the extent of it. The tenant can only recoup against the landlord in this action damages which had been sustained when the dispossessory warrant was issued. Weaver v. Roberson, supra.

5. In determining whether there has been a violation of the covenant to enlarge and equip the hotel, as provided in paragraphs 11 and 13, it becomes necessary to gather from the contract the intention of the parties as to the time when the work of enlargement should begin. The lessor covenants that he “shall, as early as practicable,” do this work. The subject-matter of the lease was a hotel; the term of the lease was three years. The additions were not only to be enlargement of the capacity to entertain guests, but to change the office arrangements, and otherwise add to the attractiveness of the hostelry as a business proposition. The tenant was contracting ^f or enlarged facilities for doing a hotel business, and the landlord recognized that purpose, and promised to supply them as soon as practicable. That did not mean that the landlord was relieved of making the improvements if he was unable to raise the money with which to pay for them. The contract does not suggest that the landlord was to act on his own convenience in starting the work contracted to be performed. When the lease was executed the hotel was in the occupancy of another tenant, whose term would not expire until October 1, 1907, the time when the lease to Mrs. Weaver was to go into effect. It is very probable that this condition, influenced the parties to some extent in using the words, “as early as practicable,” as excusing any delay in beginning the work while the premises were in the lawful occupancy of another. It is a reasonable deduction that, as the hotel was to bring a largely increased rent attributable to the stipulated improvements, and the tenant was contracting for enlarged facilities for conducting a hotel, both parties contemplated that the work should be commenced speedily after the landlord was at liberty to lawfully enter the premises so as to make the improvements contracted for. The words, “as soon as practicable,” as used in a contract requiring that it should be performed as soon as practicable, are practically synonymous with ‘speedily.’ Duncan v. Topham, 8 Man. Gr. & S. 225, s. c. 65 E. C. L. R. 225. In the case of Chicago &c. R. Co. v. Richardson County, 72 Neb. 482 (100 N. W. 950), it was said: “It is well settled that ‘immediately’ means ‘as soon as practicable,’ and conversely it is proper to construe ‘as soon as practicable’ to mean ‘immediately’.” In Fidelity & Guaranty Co. v. Western Bank, 29 Ky. L. R. 639 (94 S. W. 3, 5), it was held that “the phrases, ‘immediate notice,’ ‘notice forthwith,’ ‘as soon as possible,’ ‘as soon as practicable,’ used in policies of guaranty insurance providing that notices of loss shall be given to the insurer by the insured within a certain designated time, have practically the same meaning, to wit, that the insured shall, with all promptitude, considering the probable amount of the loss, and the probability of the ‘risks’ endeavoring to escape, give notice to the insurer of the occurrence of the loss.” In the construction of contracts, the court will endeavor to determine what was the real intention of the parties, and will look to the language employed, the subject-matter and circumstances, and may avail itself of the same light which the parties enjoyed when the contract was executed. Cloud v. County of Taliaferro, 138 Ga. 214, 215 (74 S. E. 1074). The 12th paragraph of the lease refers to the lessor’s obligation to repair broken plastering, the painting of woodwork, and the whitewashing of walls of existing rooms, “in conjunction with the other alterations referred to. The work to be proceeded upon with reasonable promptness and completed as soon as practicable.” The 13th paragraph refers to the furnishings of the additional rooms upon their completion. We think the intention of the parties, as reflected in the contract, was that the landlord should proceed with the work of making the improvements as soon as he had the right of lawful entry, and to prosecute the work to completion with reasonable promptitude.

The landlord, a few days after making the lease to the defendant, procured from the tenant in possession a surrender of his term, and on August 8, 1907, verbally leased the premises to the defendant, to the time when her written lease became effective, and gave her possession of the premises. Testimony was introduced that the contemplated additions and improvements would require from six to seven months for their completion. Taking into consideration these facts, the duration of the tenancy, and the subject-matter of the lease, it was for the jury to say whether the failure of the landlord to begin work by January 1, 1908, amounted to a breach of the lease. If the landlord failed to make improvements within the time provided in the lease, such failure would be a breach of the covenant to make the stipulated improvements.

6. The usual rule to measure damages for breach of contract to make specific repairs or improvements is the same as in the case of a contract to keep in repair; which ordinarily is the difference between the rental value of the premises with and without the repairs or improvements. 1 Tiffany on Land. & Ten. § 87 (10). In some cases it is proper to allow the tenant to recoup special damages solely traceable to the breach of the contract. Stewart v. Lanier House Co., 75 Ga. 582. The claim of the defendant for certain special damages was stricken on demurrer, and the damage sought to be recouped in the counter-affidavit was the difference between the value of the lease, had the landlord complied with his contract, and the amount which the defendant contracted to pay. If the landlord breached his covenants by failure to make the additions and improvements by January 1, 1908, and such failure affected the value of the lease as an entirety, the damages would be measured by the difference between the value of the lease, considered as an entirety, had the landlord complied with his contract, and the amount which the defendant contracted to pay.

7. The lessor covenanted, in the 10th paragraph of the lease, to keep all other portions of the hotel in repair and in a reasonable and tenantable condition; and on his failure after ten days written notice to make the necessary repairs, the lessee was authorized to do so at the expense of the lessor. The lessor was not to be liable for any damage resulting, from leaks in the roof, unless written notice had been given of the existence and approximate location of the leaks, and five days were allowed in which to make the repairs in the roof. The jury were instructed that a breach of the landlord’s covenant to repair gave to the tenant an abatement of the rent to the extent of the loss that resulted from the landlord’s violation of his covenant. Ordinarily the remedy of a tenant for failure of the landlord to repair according to his covenant is to make the repairs himself and look to the landlord for reimbursement, or to occupy the premises without repair and hold the landlord responsible for damages by action or by recoupment to an action for rent. Lewis v. Chisholm, 68 Ga. 40. The damages sought to be recouped were the diminished value of the lease,, due to the landlord’s failure to perform this covenant; and the court’s instruction was in substantial accord with the rule of law in this regard.

8. The rulings made in the 8th, 9th, and 10th headnotes do not require elaboration.

Judgment reversed.

All the Justices concur..