Slater v. Kimbro , 91 Ga. 217 ( 1892 )

Bleckley, Chief Justice.

1. The declaration is good in substance. It sets forth a substantial cause of action. The plaintiff being in possession of .the premises under a written contract for one year “ with privilege of two years longer at same agreed rate,” she was not subject to rightful expulsion at the end of the first year as a tenant at will holding-over. She was not a tenant at will, and-was not holding over, unless she had relinquished or forfeited the “privilege of two years longer at same agreed rate,” and this, so far as appears, she had not done. On the contrary, by remaining in possession after the year expired, she signified her intention to avail herself of the longer term provided for by the contract, and if an express renewal was contemplated (which, under the words of the writing, seems improbable), some demand to execute a renewal contract should have been made upon her. It seems to us that merely continuing to-occupy would spread the original contract over the two-additional years, just as it had previously covered the first year’s occupancy, and that any further express contract on the subject would be needless. The monthly rent was not payable in advance, and there is no hint in the declaration that the plaintiff was in any fault or default whatsoever. The year did not expire until the first of October, and the warrant to dispossess her was sued out the next day. The want of probable cause is manifest, and malice on the part of the defendants is-distinctly alleged. Though the warrant was not executed by eviction, if the suing of it out maliciously and without probable cause, and the attempt to execute it by eviction, occasioned special damage to the plaintiff, she can recover. The warrant was aimed at her possession, and would have deprived her of it had she not given the bond and security required by section 4079 of the code. It failed to expel her from the premises, but it brought her possession into imminent peril, and forced her to give bond and security as the price of preserving it. Had she not paid this price, she would have been expelled, and the groundless and malicious proceeding would have been triumphant. It did triumph so far as forcing her into making a bond and procuring sirreties to join with her in its execution was concerned. Had she failed to avail herself of this alternative, and if she had been turned out of possession in consequence, no one can doubt that she would have had a cause of action for the special damage occasioned thereby, the warrant having been voluntarily dismissed by those who procured it to be issued. Doubtless the course she took lessened her damages, and was therefore favorable to her persecutors. Shall she recover nothing because she rendered their unfounded and malicious proceeding as harmless to herself, and consequently to them, as possible, instead of leaving it to work all the mischief which they intended? The dismissal of the warrant after it had coerced the plaintiff to give bond and security terminated the proceeding; consequently the present action was not prematurely brought.

2. The declaration alleges that the premises were occupied and used by the plaintiff' as a boarding-house, and that a loss of boarders was occasioned by suing out the malicious process. Such would be the natural and proximate effect of thus menacing the plaintiff’s possession. It might be expected that boarders would drop out when they ascertained that their landlady was about to be expelled, and that persons who might have become boarders would be' deterred from so doing. This' interference with her business as a boarding-house keeper might well cause her special damage, and the declaration alleges that it did so in fact. If she incurred trouble and expense, including counsel fees, in giving bond and security to prevent expulsion, this also would be special damage. The declaration is loose and vague as to some of these matters, and needs amendment in order to give it full certainty; but as we have already said, it sets forth a cause of action in substance. This being so, it was error to dismiss the action on motion or on general demurrer. Judgment reversed.