Kent v. Jefferson Mortgage Co.

190 Ga. 643

• Court: Supreme Court of Georgia
• Decided: July 13, 1940
• Docket: No. 13263
• Status: Published

Opinion

Bell, Justice.

1. This was a suit to enjoin eviction of the plaintiff under a dispossessory warrant issued against him as a tenant holding over. It was agreed upon the trial that the only issue for determination was whether the relation- of landlord and tenant existed between the plaintiff and the defendant company at the time the warrant was issued; it being contended by the plaintiff that the contract on which the relationship depended was procured by fraud and duress on the part of that defendant, which contended that the plaintiff had read and understood the terms of the contract, and that it was executed freely and voluntarily by him. On examination of the pleadings and the evidence, held that there were issues of fact which should have been submitted to the jury, and therefore that the court erred in directing a verdict in favor of the defendant, and in thereafter overruling the plaintiff’s motion for a new trial. Georgia Cotton Growers Co-operative Association v. Smith, 163 Ga. 761 (137 S. E. 233) ; Smith v. Coker, 110 Ga. 654 (2) (36 S. E. 107) ; Whitt v. Blount, 124 Ga. 671 (2) (53 S. E. 205). The ease differs in material respects from Lewis v. Foy, 189 Ga. 596 (6 S. E. 2d, 788), and Lee v. Loveland, 43 Ga. App. 5 (2) (157 S. E. 707).

No. 13263. July 13, 1940.

2. The evidence did not demand a finding that any payments were made by the plaintiff after discovery of the alleged fraud; and hence the defendant was not entitled, as a matter of law, to a verdict on the theory of waiver or ratification. Contrast Monk v. Holden, 186 Ga. 549 (2) (198 S. E. 697).

Judgment reversed.

All the Justices conewr, except Reid, C. J., and Buck-worth, J., who dissent. Lowndes Calhoun, for plaintiff. Lyman II. Hilliard and Scott Candler, for defendants.