Opinion
40876.
DECIDED OCTOBER 8, 1964.
Action on lease contract. Fulton Civil Court. Before Judge Webb.
Lipshutz, Macey, Zusmann Sikes, Robert A. Elsner, for plaintiff in error.
Claude Hambrick, contra.
The plaintiff's petition alleged that the defendant was indebted to it in the sum of $660 for rent under the provisions of a contract of lease executed by the parties, a copy of which was attached to the petition as an exhibit. The defendant filed his answer and a plea of non est factum in which he denied that the lease contract sued upon had been made, signed or executed by him or by anyone acting in his behalf. Upon the trial of the case and after hearing evidence, the trial court entered an order overruling the defendant's plea of non est factum, and thereafter directed a verdict for the plaintiff. The defendant filed a motion for judgment notwithstanding the verdict predicated upon his previous motion for a directed verdict and a motion for new trial. The exception is to the denial of these motions. Held:
The overruling of the defendant's plea of non est factum constituted an adjudication that the defendant had executed the instrument sued upon under the terms of which the defendant leased apartment number "115" at 1115 LaVista Road, N.E., Atlanta, Georgia, for a term of one year at a monthly consideration of $165; and there being no exception to this judgment, it became the law of the case. The evidence adduced on the trial of the case demanded a finding that the defendant had vacated the leased premises with four months of the term still outstanding and that the rental for these four months was due and unpaid. The evidence also demanded a finding that the plaintiff, acting as lessee's agent as authorized under the terms of the lease agreement, had shown the vacant apartment to all prospective tenants seeking such accommodations, to no avail; and had thus exercised "reasonable effort," as provided in the lease, to rent the vacant apartment during the remainder of the term of the lease. A verdict was thus demanded for the plaintiff, and the trial court did not err in directing same, and in denying the defendant's motion for judgment notwithstanding the verdict and his motion for new trial, none of the grounds of either motion being meritorious.
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.