Strohecker & Baldwin v. Barnes

By the Court. Lumpkin, J. delivering the opinion. When this case was before the Court, February, 1855, (17. Ga. Rep. 340,) we held, that construing the contract to mean that the tenant was to get possession the 1st of October, and that the repairs was a condition precedent, still his going in [433] to the house after that time might be considered as a waiver of the repairs before that time, but that it did not dispense with the making them within a reasonable time thereafter. The new testimony is, that Barnes agreed that the repairs might be done by the 10th of the month, and it is now insisted, that inasmuch as he went into possession before the time stipulated, that it is a waiver of the repairs altogether, as a condition precedent, and that he is bound for the rent, and the landlord is liable only for damages. We ask, how does the occupation before the time amount to a waiver? We 'do not feel the force of this position. He went in supposing the last agreement would be executed. He found six hands at work on Saturday the 9th. On Monday one only came back, and he did but little; and on Tuesday, Barnes left He waited till the 22d, allowing the full period claimed to be sufficient to complete the repairs, and nothing being done, he served a written notice on the landlord, of his abandonment of the contract. The new testimony, in the opinion of this Court, weakens rather than strengthens the original defence. Certainly it does not help it. Judgment affirmed.