Sapp v. Elkins

Cobb, P. J. (After stating the foregoing facts.) The brief of counsel for plaintiff in error is silent as to the exception to the460 judgment overruling tbe motion to dismiss the- warrant 'because jurisdiction was not shown; and we will therefore treat this assignment of error as having been abandoned. From the record before us we do not know what payments Sapp directed Elkins to apply to his rent due upon the land, according to Sapp’s testimony. The brief of evidence recites that Sapp delivered two bales of cotton to Elkins, with this direction. The amount to be credited on account of the cotton does not appear. In any event there is a conflict of testimony on this point, and the finding of the jury appropriating the payments to the amounts due on the items other than rent will not be disturbed. It was contended that as the note recited that it was given for rent, the various items making up its consideration could not be inquired into. But this evidence was introduced by the plaintiff below, who now makes this contention, and similar.evidence was introduced by the defendant below without objection. It is too late to raise this question in this court. According to the undisputed evidence, $150 was the amount agreed upon as rent for the land, and $50 hire of the horses to be used on the rented premises. All this was embraced in one contract. When a contract creating the relation of landlord and tenant embraces a sum to be paid as rent of the land and another sum to be paid as hire of animals to be used on the rented premises, the whole sum due is rent, and may be collected by distress. Lathrop v. Clewis, 63 Ga. 282, and cit.; Payne v. Holt, 61 Ga. 355. Judgment affirmed. All the Justices concur.