Thomas v. Campbell

191 S.E.2d 619, 126 Ga. App. 675, 1972 Ga. App. LEXIS 1248

• Court: Court of Appeals of Georgia
• Decided: June 12, 1972
• Docket: 47105
• Status: Published

Opinions

Quillian, Judge.

In an action on two notes, the defendant appeals, from the judgment and from the direction of a verdict against the defendant on his counterclaims.

The parties here were landlord and tenant. The landlord procured one note during the tenancy to cover damage to the property beyond normal wear and tear. The other note was procured after the tenant had moved out. It was for five months unpaid back rent in the amount of $550, of which the tenant had paid $280 or $300 in weekly instalments.

The tenant set up several defenses to the action on the note. He also filed four counterclaims for diminished value of the premises because of the landlord’s failure to repair certain defects, i.fe., a leaking roof, a disconnected bathroom lavatory, an unusable shower and a chronically leaking pipe in the kitchen sink. The pleadings alleged a dollar value for the diminution. However, while there was testimony concerning the existence of the alleged-defects, there was no evidence presented on the dollar amount of damages in any of the counterclaims.

1. The evidence supports the verdict. The landlord’s burden of proof, is only that for establishing a note. The case of Spacemaker, Inc. v. Borochoff Properties, 112 Ga. App. 512 (145 SE2d 740) is not applicable. That was an action against a tenant for breach of the agreement to surrender the premises in good repair.

2. The court did not err in refusing to charge the jury on fraud or "offer and acceptance.” The evidence did not authorize charges on these theories.

3. The counterclaims alleged that the failure of the landlord to make certain repairs to the property diminished the rental value thereof. Each of the counterclaims alleges the specific dollar amount that the rental value of the property was reduced. However, upon the trial of the case no evidence was offered as to the amount the failure to make repairs had diminished the value of the house to the tenant. This could have been proved by an expert or by the tenant giving his opinion and the facts, upon which such an opinion was based.

" 'Where a party sues for specific damages he has the burden of showing the amount of loss claimed in such a way that the jury may calculate the amount of the loss from the data furnished and will not be placed in a position where an allowance of the loss is based on guesswork. National Refrigerator &c. Co. v. Parmalee, 9 Ga. App. 725 (72-SE 191).’ Studebaker Corp. v. Nail, 82 Ga. App. 779, 785 (62 SE2d 198); Davis v. Price, 72 Ga. App. 565 (34 SE2d 565).” Williams & Templeton v. Brewer, 93 Ga. App. 603 (1) (92 SE2d 586). Jones v. Royster Guano Co., 6 Ga. App. 506, 516 (65 SE 361), and Towaliga Falls Power Co. v. Sims, 6 Ga. App. 749, 762 (65 SE 844), cited by the defendant in support of his counterclaims, aré clearly not applicable since they are nuisance cases. No evidence having been offered to support the allegations of the counterclaims, the direction of a verdict on the counterclaims was proper.

Argued April 10, 1972— Decided June 12, 1972— Rehearing denied July 14, 1972 Kenneth G. Levin, for appellant. Fred W. Minter, for appellee.

Judgment affirmed.

Bell, C. J., Eberhardt, P. J., Pannell, Deen, Evans and Clark, JJ., concur. Hall, P. J., and Stolz, J., dissent.