Windjammer Associates v. Hodge , 155 Ga. App. 703 ( 1980 )

McMurray, Presiding Judge.

In Windjammer Associates v. Hodge, 153 Ga. App. 758, 759 (2) (266 SE2d 540), the majority of this court held that the evidence was sufficient to authorize the trial judge to charge on fraud inasmuch as the jury “could infer knowledge as to the condition of the premises... leased.” The plaintiffs, “a partnership,” were the landlords. The testimony of one partner, was that he had no knowledge that the defendant herein was furnishing hot water to another tenant with reference to the leased premises. The lessee was obligated to pay all utility bills.

Submitted October 31, 1979 Decided September 11, 1980. Louis F. Ricciuti, for appellant. Harvey A. Monroe, Matthew O. Simmons, for appellee.

On certiorari, in Windjammer Associates v. Hodge, 246 Ga. 85 (1980), the Supreme Court held the jury could not reasonably infer from proof of Windjammer’s status as landlord that the partnership knew that defendant Hodge’s utility bills included the cost of the hot water used and since it was impossible to discern whether the $1,000 verdict and judgment returned on the defendant’s counterclaim was for breaches of contract or act of fraud, “the verdict and judgment thereon must be reversed.”

Accordingly, the opinion and judgment of the Supreme Court in this case is made the opinion and judgment of this court.

Judgment reversed.

Deen, C. J., Quillian, P. J., Smith, Shulman, Banke, Birdsong, Carley and Sognier, JJ., concur.