Driver v. Maxwell , 56 Ga. 11 ( 1876 )

Bleckley, Judge.

1. The affidavit for distress warrant was for a definite sum alleged to be due for rent, but did not disclose when it became due, or set forth the terms of the rent contract. The plaintiff gave evidence of a contract, not payable in money, but in a part of the crop — one-third of tile corn and one-fourth of the cotton to be raised on the premises in the year 1873. With this and some other evidence, a part of it tending to prove the quantity and value of the corn and cotton raised, the plaintiff closed; and the defendant thereupon moved for a non-suit, because it was not averred in the affidavit that the sum distrained for was due, and because there was a variance between the testimony and the facts alleged in the affidavit. The affidavit showed substantially that the amount claimed was due. It failed to show when it became due, but that is not required. Neither is it necessary to set forth the rent contract. What is required is laid down in section 4082 of the Code, and this affidavit conformed to all the provisions of that section. Whatever of detail was relevant in any stage of subsequent litigation, was admissible evidence without other or fuller pleading than the affidavit as it was. All that “ any person who may have rent due,” is required to swear, in order to obtain a distress warrant, is prescribed; and whoever goes that far is entitled to prove the actual facts of his case when he is met and resisted with an issue. The motion for a non-suit was properly overruled.

2. The Code, section 2284, introduced a new rule on the subject of keeping rented premises in repair, devolving the burden on the laudlord instead of upon the tenant, where it rested by the rule of the common law. This statutory obligation of the landlord has been frequently considered by this court; 48 Georgia Reports, 172; 49 Ibid., 272; 38 Ibid., 542; 39 Ibid., 210; Whittle vs. Webster, 55 Ibid., 180. Generally, no doubt, where full rent is reserved, the landlord is to be understood as letting his property in a condition reasonably fit for the purpose for which it is intended to be used, and as binding himself to keep it in that condition, on proper notice from his tenant, by making necessary repairs, or authorizing them to be made at his expense. But where the premises, by reason of patent defects, known alike to both parties, are, at the time they are offered for rent, out of repair and unfit for safe or comfortable use, the tenant ought to reject them if he is not satisfied to accept them as they are; and if he does accept them, no matter what price he agrees to pay, the landlord, in the absence of a special undertaking to do more, should be held for such repairs only as become requisite to keep the property in as good condition as when it was rented. He may well say to the tenant, “you knew what you got; I offered my property as it was, and did not hold it out to you for more than it was.” In such a transaction all the conditions of fair dealing would be met and satisfied. On the other hand, however ruinous and dilapidated the property might be, the tenant, without some special undertaking on his part, no matter at how cheap a rent he was admitted into possession, would be under no legal obligation to make any repairs or to call for any; certainly he would be under no duty to his landlord to make or call for any which the latter knew were needed at the time of entering into the rent contract. Surely the tenant would be at legal and moral liberty to remain quiet so long as the premises were in as good a condition as when he received them. That much was his privilege under the old rule of law, when he himself had to make repairs. He was bound for such repairs only as were requisite to maintain the status quo; in some cases, perhaps, not for that much.

3. If these views are correct, their application to the present ease is not difficult. The contract of renting was made with the tenant by an agent of the landlord. It was for one year, 1873, and the landlord’s compensation was to be one-third of the corn and one-fourth of the cotton raised on the premises. It is not shown to have been in writing — the presumption is it was in parol. The agent of the landlord testifies that the fence was in very bad condition, insufficient to turn and keep off ordinary stock from destroying the crop; that plaintiff and defendant both knew it at the time of the renting, and that nothing was said as to who should put the fence in condition to protect the crop. The tenant testifies that nothing was said as to who was to put the fence in condition to protect the crop; that all the parties knew the fence was no account, and would not turn any kind of stock; and that in many places a man could step over it with ease. In relation to the crop made, its value, and what became of it, the agent testifies, that the corn raised was something like one hundred and thirty or one hundred and forty or one hundred and fifty bushels, worth $1 00 per bushel; and the cotton something like thr.ee or four bales; that good cotton was worth some thirteen cents per pound,but this was very popr, because the tenant and his hands, being sick in the fall, did not gather the crops till late, and the storms and the stock injured them very much. The tenant testifies that he raised about four bales of cotton, and about one hundred bushels of corn; that about forty bushels of the corn was destroyed by hogs and cattle; that the cattle destroyed all the cotton except two bales, of four hundred pounds each; that the cotton was rather poor, on account of bad weather and the cattle running over it before it was gathered; and that he sold it for eleven cents per pound, which was the best price he could get. He testifies further, that the rent corn and cotton were to be delivered on the premises; that he put up the rent corn, thirty-three bushels, in a crib, as agreed, and that he tendered to plaintiff’s agent one-fourth of the cotton, in the seed, which the agent declined to receive, requiring it to be ginned, baled and delivered in Americus. It does not appear what finally became of the corn put up as rent. The presumption is that the cotton tendered in the seed was afterwards ginned, and formed a part of the two bales sold.

On the facts in evidence there was no legal obligation upon either party to make the fence better. Both knew of its condition, and neither stipulated to make repairs or to be chargeable with them. The crop was at the mutual risk of the parties, to the extent of such interest as each had in its preservation. Whatever was lost by reason of the bad fence was as if it had not been produced. Neither party was bound to make the loss good to the other. There is no evidence that the fence deteriorated or became in a worse condition than when the parties contracted. Its then insufficiency continued, and there is no evidence of any fault or default on the part of either landlord or tenant. Both parties risked the fence just as they did the soil and the seasons. What the ground would produce and the fence secure they were to divide; what the weather or the cattle destroyed was gone beyond recovery and gave no right to compensation.

The court’s charge to the jury was erroneous in so far as it departed from this theory of the law; and inasmuch as the verdict could have been for less than it was, consistently with the evidence, if a correct charge had been given, the judgment is reversed and a new trial granted.

Judgment reversed.

Warner, Chief Justice, concurred, but furnished no written opinion.