Todd v. Leach , 1897 Ga. LEXIS 30 ( 1897 )

Lumpkin, Presiding Justice.

An action was brought by Leach against Abram and Jane Todd. The declaration made, in substance, the following case: Under a contract with the defendants, the plaintiff, at an expense of $200, built a house upon a lot which they owned in the city of Atlanta, the consideration of his so • doing being that he was to have the use and occupation of the same for the balance of his life, free of rent. He went into possession. Afterwards, in violation of their contract, the defendants wrongfully evicted him from the premises. The prayer of the petition was for the recovery of the money he had expended and the value of the labor he had performed in the erection of the house, the same amounting altogether, as alleged, to $200. The action was in no sense one to recover the value of the life term of which the plaintiff •claimed he had been unlawfully deprived. The defendants sought to set off against the plaintiff’s claim the value of •the premises for rent during the time the same had been oceupied by him. Tbe court, by its charge, completely eliminated this defense from consideration by tbe jury, and its so doing is assigned as error in tbe bill of exceptions.

1. Undoubtedly, by bringing tbe above described action,. tbe plaintiff elected to treat tbe original contract between bimself and tbe defendants as rescinded. Tbis being so, it follows as a necessary legal consequence that tbe defendants were entitled to plead and prove tbe alleged set-off. “Where ■ tbe plaintiff seeks to recover tbe purchase money paid by him for land, treating tbe contract of sale as rescinded, be - must account for tbe value of tbe use thereof whilst be was-in possession.” McDonald v. Beall, 55 Ga. 288. And see - Wilson v. Burks, 71 Ga. 862. Tbe case in band is controlled by tbe principle laid down in the eases just cited, and there would be no difficulty in fortifying their correctness-' by authorities ad nauseam.

2. The statute of frauds manifestly has no bearing upon. tbe present case.

Judgment reversed.

All the Justices concurring.