Strand Amusement Co. v. Ferrell , 29 Ga. App. 456 ( 1923 )

Jenkins, P. J.

This was a proceeding upon a dispossessory warrant, tried on the issues as to whether or not the tenant had failed to pay on demand the past-due rent and to deliver possession of the premises. The jury found for the landlord, but the amount of the plaintiff’s recovery did not exceed the contract price for the premises during the period of occupancy. While here, as in Mahoney v. McKenzie, 27 Ga. App. 245 (107 S. E. 775), there is some evidence that the landlord had on certain previous occasions accepted certain monthly payments of rent after the expiration of the due dates thereof, this case materially differs from the case cited, in that here the proceeding was not instituted until after a demand for the rent and for possession had been made and the defendant had refused to pay. The evidence in the instant case is uncertain as to the time when the tender of the rent was made. It further differs from the Mahoney case in that here it indisputably appears that prior to the maturity of the last payment the landlord notified the tenant that he would' thereafter insist strictly upon prompt payments as provided for by the contract, and he did not subsequently to such notice do anything to waive the terms of his lease or to impair the effect of such notice. Nothing is presented which would authorize a reversal of the judgment refusing the motion for a new trial.

Decided February 8, 1923. Distraint; from Troup superior court■—-Judge Boop. March 16, 1923. Lovejoy & Mayer, J. T. Thomasson, for plaintiff in error. L. B. Wyatt, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.