Opinion
38457.
DECIDED OCTOBER 25, 1960. REHEARING DENIED NOVEMBER 23, 1960.
Action for rent. Fulton Civil Court. Before Judge Henson. May 19, 1960.
O. Lee White, for plaintiff in error.
J. Norwood Jones, Jr., Maymie N. Jones, contra.
1, 2. Exhibits A, B and C are not subject to demurrer for the reasons stated in the opinion.
3. The court did not err in overruling special demurrers to various paragraphs of the petition.
4. The general demurrer is without merit.
5. The evidence supported the verdict and the damages were not "excessive" as contended by the defendant.
6, 7. No harmful error is shown by the construction of the contract stated by the judge to the jury prior to the charge or in the excerpt of the charge complained of.
8. The alteration of the contract which was the basis of the suit was not sufficiently material to bar the action on the contract.
DECIDED OCTOBER 25, 1960 — REHEARING DENIED NOVEMBER 23, 1960.
J. S. Castle filed his petition in the Civil Court of Fulton County against W. G. Smith seeking rental due under contract. The plaintiff alleges that on or about October 22, 1958, the parties entered into a contract for the purchase and sale of a house and lot in the city of Atlanta; that it was agreed in another contract, ancillary to the first, that the defendant would pay $70 per month rental until a loan was obtained and the closing of the transaction effected; (5) that the defendant continues to occupy the premises, he has paid no rent, and that it was necessary for the plaintiff to file for dispossessory and distress warrants which were never executed because of inability to serve the defendant; (6) that the defendant is indebted to the plaintiff for rent in the sum of $560 through June 22, 1959, with an additional $70 per month due thereafter so long as the defendant retains possession of the premises; (7) that the defendant refused to cooperate, he retains the premises against the wishes of the plaintiff, and the plaintiff on numerous occasions demanded settlement; (8) that the expenses accruing to the plaintiff, due to the acts of the defendant are $15 for long distance calls and $95 in travel expenses; (9) that the plaintiff had made numerous demands on the defendant to release the property or pay rental and that he refused. Attached to and made a part of the petition were the following exhibits: Exhibit "A", the contract for purchase and sale dated October 22, 1958, which is the standard sales contract adopted by the Atlanta Real Estate Board at the time of execution. It recites a deposit by the defendant of $300 as earnest money (the forfeiture and recovery provisions are those generally used in this type contract); Exhibit "B", the purported ancillary rental agreement, dated October 22, 1958, and signed by the defendant, accepted by the plaintiff on October 31, 1958, which reads as follows: "To whom it may concern: On October 22, 1958, W. G. Smith, Jr., purchaser, made a written offer to buy the home at 1846 Markone St., N.W., Atlanta, Georgia, from Jacob S. Castle for a sum of $9,750. In this connection, if offer is accepted, purchaser agrees to repair screens on front and side doors, paint interior and exterior of home to comply with F.H.A. requirements. Moreover, Smith agrees to pay for materials and labor needed to take care of foregoing repairs. Repair work to be started before Nov. 15, 1958. Smith, buyer, agrees to pay Castle, seller, rental in the amount of $70 per month from date Smith moves into home in the event loan is not closed in the name of W. G. Smith, Jr., buyer." Exhibit "C", the F.H.A. "report on application" dated January 2, 1959, identifying itself with the premises and proposed loan to the defendant with the comment that the application did not qualify for mortgage insurance because permission was "refused by occupant to inspect or measure house."
To the petition the defendant filed his answer, general demurrer and special demurrers to Exhibits A, B and C, and paragraphs 5, 6, 7, 8 and 9 of the petition. The court overruled all demurrers and the case went to trial.
There were several issues raised by the answer in which it is alleged: Exhibit "B" of the petition purporting to be the rental agreement contained a material alteration, the sentence "Repair work to be started before Nov. 15, 1958" having been added to the agreement after its execution; that it was the duty of the plaintiff to obtain a loan for the defendant; that an F.H.A. inspector came to the house and he was permitted to examine all of the premises with the exception of one room which was allegedly occupied by the defendant's sick wife and that for this reason the appraisal could not be completed; that the appraiser said he would return but did not; that the defendant paid $300 as earnest money for the purchase of the premises and that the plaintiff fails to give credit for said amount in his suit to recover rent; that it was the plaintiff who had refused to cooperate toward closing the transaction and the defendant repeatedly requested the seller, his agent and the F.H.A. to complete the appraisal. By cross-action the defendant sought to recover the $300 earnest money and $2,000 in damages for the acts of omission and commission on the part of the plaintiff, his agents and attorneys.
In the trial of the case the judge, in the presence of the jury, stated: "The only thing I'm going to submit to the jury, is whether or not the plaintiff is entitled to recover rent as fixed by that contract, provided they find that the contract was not altered in such a material manner as to void it. I'm going to tell them to disregard that sales contract and F.H.A. housing business entirely, because there is no issue here — nobody has any rights in this action which arose in any of those procedures. I'm going to construe this contract on which this suit is based to mean if this loan didn't go through, then rent would begin to accrue at $70 per month. That's exactly what the contract says." In his charge to the jury the presiding judge said: "Under the cross-bill filed by the defendant, he could not recover the earnest money alleged to have been pledged with the broker . . . the only issue that is before you is first, whether the contract relied upon, being the ancillary contract identified as Exhibit "B" to the petition, be subject to the defense that a material alteration occurred. The other issue is whether or not this defendant discharged his obligation under that contract to pay rent. Those are the simple issues of fact. You should disregard any other issue except one. If you find that the plaintiff by any act of conduct on his part, prevented the loan from being consummated, then he would be estopped from taking advantage of that condition contained in the auxiliary contract. Gentlemen, these are the simple issues in the case." The jury returned a verdict finding for the plaintiff 16 months rent at $70 per month (1,120), and found against the cross-bill.
By the amended motion for a new trial the defendant alleges: that the verdict was grossly excessive; that the defendant should have been given credit for $300; (2) that the statement made by the presiding judge in the presence of the jury was prejudicial; (3) that the quoted charge of the presiding judge unduly confused and misled the jury as to what the issues of the case were.
The court overruled the amended motion for a new trial and the defendant assigns error here on that ruling and the ruling on the demurrers.
1. The demurrers to Exhibits "A" and "B", the contract of purchase and sale and the rental agreement, that they are irrelevant, immaterial and prejudicial for stated reasons are without merit. Both contracts are necessary adjuncts to the petition and are essential to the action. Failure to attach the contracts to the petition would have been fatal. Red Line Products Co. v. J. M. High Co., 53 Ga. App. 531 ( 186 S.E. 296), and cit. "Copies of contracts, obligations to pay, or other writings should be incorporated in or attached to the petition in all cases in which they constitute the cause of action, or the relief prayed for must be based thereon." Code § 81-105. Although Exhibit "B" is the basis of the plaintiff's action its existence and relevance stem from Exhibit "A".
2. The defendant's demurrer to Exhibit "C" is without merit in that Exhibit "C" supports the allegations to the plaintiff's petition and there appears to be no variance between it and the allegations.
3. The court correctly overruled the demurrers to paragraphs 5, 6, 7, 8 and 9 for each of these paragraphs plainly and distinctly sets out the plaintiff's cause of action and is not superfluous, improper, unnecessary or defective in any other particular. Pilgreen v. Hanson, 89 Ga. App. 703 (2) ( 81 S.E.2d 18).
4. The petition sets forth a cause of action. It is alleged that a rental contract exists between the parties; that the defendant is occupying and has occupied the subject house for a period of time; that demand has been made and that he has refused to pay rent; and that rent is now due and owing. Although the defendant may have been entitled to bring an action for breach of contract he cannot maintain any right to continue living in the house rent free. The general demurrer was properly overruled.
5. There is no merit in the contention that the damages are "excessive," the amount of the verdict arrived at being rent for 16 months, from October 22, 1958, to March 22, 1959, @ $70 per month. The $300 earnest money becomes important only upon the execution or failure to execute a deed to the premises. Thus it was to become part of the purchase price when the transaction was complete or forfeited or returned under certain conditions if the transaction was not completed. Nowhere can it be read into these contracts that the $300 would be applied as rent if the sale contract terminated.
6. It was not only proper for the judge to make the statement made but it is the duty of the trial judge to inform the jury what the issues are and "where a particular fact is established by uncontradicted evidence, it is not error for the judge to assume or intimate that the fact has been proved." Dexter Banking Co. v. McCook, 7 Ga. App. 436 ( 67 S.E. 113).
7. We feel that the portion of the charge to which exception is taken was proper when examined in the light of the brief of evidence and the remainder of the charge. This charge is exceptionally fair to the defendant, for under it the jury could have determined that the plaintiff prevented consummation of the purchase and sale contract, in which event, the defendant would have owed the plaintiff nothing under the ancillary contract. The plaintiff in error makes special mention of the court's statement, "Under the cross-bill filed by the defendant, he could not recover the earnest money alleged to have been pledged with the broker." We think the court is correct in this, for the disposition of the $300 is controlled by the purchase-and-sale contract in which a third party, the broker, has a contractual interest and which is not the subject of this action. Where several excerpts from the charge of the court are complained of in a motion for a new trial, and some of the detached fragments of the charge, if treated alone, may be subject to slight criticism, when considered in the light of the charge as a whole and the facts of the case, none of them disclose reversible error, such an assignment of error is without merit. Foster v. Burnley, 56 Ga. App. 202 ( 192 S.E. 389).
8. As to the alteration of the contract, it was not material in the sense that it materially altered the responsibilities and rights of the parties.
The court did not err in overruling the demurrers and the motion for a new trial.
Judgment affirmed. Nichols and Bell, JJ., concur.