Desverges v. Marchant

89 S.E. 221, 18 Ga. App. 248, 1916 Ga. App. LEXIS 260

• Court: Court of Appeals of Georgia
• Decided: June 5, 1916
• Docket: 7077
• Status: Published

Opinion

Bkoyles, J.

1. A landlord is bound to keep in repair the premises which he has leased, unless the contract of lease contains a stipulation to the contrary. Civil Code, § 3699.

(a) However, if there are patent defects known to both parties at the time of executing the lease, and the lessee takes the premises as they are, he can not thereafter demand that the landlord remedy the defect. Driver v. Maxwell, 56 Ga. 12; Aikin v. Perry, 119 Ga. 263 (46 S. E. 93); Lumpkin v. Provident Loan Society, 15 Ga. App. 816 (84 S. E. 216); 1 Tiffany on Landlord & Tenant, 599, 634.

Decided June 5, 1916.

Complaint; from city court of Bainbridge — Judge Spooner. October 30, 1915.

W. V. Custer, for plaintiff in error. Harisfield & Conger, contra.

(bj Whether the patent defect in this case — the absence of sufficient fencing around the premises — was known to both parties when the lease was executed was a question for the jury, and there was evidence authorizing a finding in the negative.

(e) Whether proper fences around the premises were necessary for the purposes for which the premises were rented, and whether these fences needed to be repaired, were questions for determination by the jury.

(d) The landlord was not relieved from the duty of keeping the fences in repair merely because of the following provision in the lease-contract: “Lessee to have the right to cut sufficient timber for the necessary posts to fence the place.”

2. Where a motion to rule out evidence is too broad, including both admissible and inadmissible evidence given by the witness, and not distinguishing the one from the other, the motion should be denied. Birmingham Lumber Co. v. Brinson, 94 Ga. 517 (20 S. E. 437); Barnard v. State, 119 Ga. 436 (46 S. E. 644); Johnson v. State, 125 Ga. 243, 246 (54 S. E. 184). Under this ruling no error is shown in the admission of the testimony complained of in the fourth ground of the amendment to the motion for a new trial.

3. The excerpts from'the charge of the court upon which error is assigned are not, when taken in connection with the entire instructions, erroneous for any reason assigned.

4. No material error upon the trial is shown; the verdict is supported by some evidence, and, the trial judge having approved it, this court is without authority to interfere. Judgment affirmed.