Childrey v. Brantley

Sutton, J. The plaintiffs brought suit in the municipal court of Atlanta, claiming that the defendant was due them $25 per month rent for two and one half months on certain premises occupied by him. The jury returned a verdict for the full amount sued for. The defendant moved for a new trial, which was overruled, and the appellate division of the municipal court of Atlanta affirmed the judgment. The exception here is to that judgment. I. The defendant was occupying the premises of the plaintiffs as a tenant at will at a specified monthly rental, and being unable to pay his rent notified the plaintiffs of that fact and stated that he would vacate the premises. The plaintiffs consented for the defendant to remain in the premises for about two years without the payment of any rent in order to keep their premises occupied, with the understanding that the defendant should be given thirty days’ notice before being required to vacate. On May 25, 1934, one of [147] the plaintiffs notified the defendant that he would have to begin paying rent on June 1, 1934, at $30 per month, if he wished to continue to occupy their premises, and the defendant replied on May 29, 1934, telling plaintiffs that he could not pay this amount of rent as his business would not justify it, and could vacate the premises “within few days’ notice,” but that he had expended $15 in improving the premises, which plaintiffs did not dispute. In consideration of these repairs plaintiffs agreed that defendant could have until June 15th, 1934, for Ms rent to begin and told defendant he could have the property at $25 per month. The defendant again told the plaintiffs he could not pay that amount but would pay $20, to which plaintiffs refused to agree. The defendant occupied the premises until July 31, 1934, and then vacated them without the payment of any rent. This evidence did not show an express contract to pay $25 a month, and the verdict for rent beginning June 15, 1934 and ending August 31, 1934, based on a contract at the rate of $25 a month, was not authorized by the evidence. But as the defendant continued to occupy the premises after the expiration of thirty days from May 25, 1934, when he was notified that he would have to pay rent, which plaintiffs later told Mm would be $25 per month, there was an implied contract to pay .this amount of rent. So all the defendant would be liable for would be at the rate of $25 per month from June 25, 1934, until he vacated on July 31, 1934. This would amount to $30, less the undisputed amount of $15 expended by the defendant for repairs, which would leave a balance of $15. The judgment for $62.50 was not authorized, but if the plaintiffs will write off $47.50 from that judgment, reducing the amount of the recovery to $15, before or at the time the judgment of this court is made the judgment of the lower court, the same will stand affirmed. On failure to do this, the judgment will stand reversed. Let the defendants in error pay all costs of the writ of error. Judgment affirmed on condition. Jenkins, P. J., concurs. Stephens, J., dissents.