Salios v. Swift

Smith, J. It is the duty of the judge in the trial of a case before a jury to instruct them clearly and fully as to all the material and substantial issues in the case, and then to instruct them in the same manner as to the law applicable to these 'issues. In the instant case, while the judge, in his charge to the jury, did state the contentions of the parties, and did in stating those contentions quote section 5385 of the Civil Code (1910), he failed to instruct the jury as to what constituted a tenancy at sufferance and a tenancy at will. The failure of the court to instruct the jury fully and clearly as to these contentions and the law applicable thereto was error; and therefore the judgment overruling the motion for a new trial must be Reversed. Jenkins, P. J., and Stephens, J., concur. Upon an affidavit of Swift under the Civil Code (1910), § 5385, a warrant was issued for the eviction of Salios from a certain storehouse as a tenant holding over and beyond his term. A counter-affidavit was filed in which the defendant contended that his term of rent had not expired, that no legal démand was made upon him before the issuance of the warrant, that no notice was given to him as required by law, and that he did not hold the premises from the plaintiff. On the trial, (as appears from the charge of the court) the plaintiff contended, that the defendant was a tenant at sufferance, and therefore it was not necessary to give him the two-months written notice required of a landlord to terminate a tenancy at will (Civil Code, § 3709), and further contended that the two-months notice was in fact given. The defendant contended that he was a tenant at will, and that two-months notice was not given. The trial having resulted in a verdict against the defendant, he made a motion for a new trial, on various grounds, one of which is indicated in the foregoing decision. In the judgment overruling the motion the trial judge, among other things, said: “Yiewing the defendant as a tenant at will, it appears, from the undisputed testimony in the case, that the two-months notice contemplated by section 3709 of Park’s Code was given the defendant. Where the statute uses the term ‘month’ and does not define it, the courts adjudge that lunar months are intended. Dudley, 107. A lunar month is 28 days. 38 Cyc. 311. The lunar month is composed of 28 days only. By the law of England a month means ordinarily in common contracts, as in leases, a lunar month; a contract, therefore, made for a lease of land for 12 months would mean a lease for 48 weeks only. Bouvier’s Law Dictionary, Vol. 2, p. 187, citing 2 Bl. Com. 141. The testimony of the plaintiff, which is undisputed, shows that he became the owner of the property in question on July 2, 1919, and that he gave the defendant written notice that the store would not be for rent to defendant after August 31, 1919.” In the motion for a rehearing in the Court of Appeals it was contended that Salios “was neither a tenant at will nor a tenant at sufferance, and there was no evidence to warrant a charge on either or bothand the following cases were cited: Purlell v. Farris, 137 Ga. 323; Willis v. Harrell, 118 Ga. 906; Moore v. Morrow, 28 Cal. 551. Grogan & Payne, for plaintiff in error. Z. B. Rogers, contra.