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Bowen vs. Bowen.

if, upon his failure to do so, damage results to the tenant's goods in consequence of such failure to make the necessary repairs, the landlord will be liable therefor. In this state the law is that the landlord must keep the rented premises in repair, not as the same were when the tenant rented them, if he did not know of the defective condition thereof at the time, but the same are to be kept in repair by the landlord so as to render them suitable for the purposes for which they were rented. If the tenant pays the landlord a fair and reasonable rent for the store-house rented as being suitable for the purpose for which he rented it, he is entitled to have it kept in repair by the landlord for that purpose, under the provisions of our Code.

Let the judgment of the court below be reversed.

Thomas O. Bowen, plaintiff in error, vs. Mary BOWEN,

defendant in error.

55 182 59 400 59 838 67 211 79 81

55 182 93 821

1. The system of homestead and exemption provided for by the constitution

is voluntary, not compulsory; and the laws enacted for the setting apart and valuation thereof should be so construed as to harmonize with the vol

untary character of the constitutional system. 2. Therefore, section 2022 of the Code, which enacts that “should the hus

band refuse to apply for the aforesaid exemption, his wife, or any person acting as her next friend, may do the same, and it shall be as binding as if done by the husband,” should not be construed to mean that if the husband not only refuses to apply himself for homestead, but solemnly objects on record as a party defendant, to his wife's doing so, that then the application shall be granted and the homestead carved out of his individual property

over the objection so made by him. 3. No man's property can be set aside as homestead and exemption without

his consent, express or implied ; if his wife, or some one as her next friend, apply and he fails to interpose objection by plea, his assent will be implied; but if he he does interpose objection by plea, the presumption is rebutted, and the homestead cannot be set apart out of his property. The distinction is clear between his refusal to apply himself, and his objecting to another applying in behalf of his family; and the statute will be construed to mean that though he refuse to act, his wife's application will be granted unless he object by plea; then it will be refused.

Bowen vs. Bowen.

Homestead. Laws. Husband and wife. Before Juilge BARTLETT. Jones Superior Court. October Term, 1874.

Report unnecessary.

PoE, HALL & LOFTON, for plaintiff in error.

ISAAC HARDEMAN, by brief, for defendant.

JACKSON, Judge.

The single question made in the record in this case is, čan a man's own individual property be set apart as homestead and exemption from his debts without his consent? We think that it cannot be done under the constitution and laws of this state, and our reasons for so holding are sufficiently set out in the syllabus furnished the reporter for publication. We merely remark here that under the old exemption laws, enacted in 1841, a question somewhat analogous to that at bar came before this court, and it was held that the legislature had no constitutional power to take from a man any portion of his property without his consent; and that to take it from the payment of his debts is to take it from him : Davenport et al. vs. Alston, 14 Georgia, 274. Our constitution of 1868 does not enlarge the scope of legislative power in this particular, so as to authorize the legislature to take away a man's property without his consent; on the contrary, the system of homestead and exemption therein authorized is voluntary, not compulsory. Each bead of a family shall be entitled to the homestead and exemption; or the guardian or trustee of minor children shall be entitled to such homestead and exemption-evidently supposing their assent thereto, either express or implied. The assent of the father will be implied if he do not object, though he may refuse to act himself, and his wife act for the family; but if he object by plea, as in this case, his objection must prevail against the application. There is a distinction-clear, we think between his refusal to act himself and his objecting to his wife's acting for

Jowers vs. Baker.

the family. And we construe the act which authorizes the wife to act in case the husband refuses, to mean, where the husband simply declines to make application, and cannot extend it to cases where he objects on record, by defense, to the wife or any one else applying, if the property be his. Of course, if the property belong to the wife or the children, or to both, the husband and father could not object, nor would his consent be necessary to secure the homestead and exemption out of such property : See Code, sections 2022, 2018.

Judgment reversed.

WILLIAM P. JOWERS, plaintiff in error, vs. JAMES L. BAKER,

defendant in error.

155 184 57 83

The fair and legitimate construction of a contract to furnish timber and saw

logs to meet the demand of a certain mill and to keep the same constantly running during the continuance of the contract, is not that the party assuming the obligation should furnish only a sufficient quantity of timber to supply the demand of the purchasers of lumber from said mill, but that he should deliver a sufficiency of logs, etc., to keep the mill constantly running independent of what might be the demand of the purchasers.

Contracts. Before Judge JAMES JOHNSON. Marion Superior Court. April Term, 1875.

Reported in the decision.

THOMAS H. PICKETT ; LITTLE & CRAWFORD; PEABODY & BRANNON, for plaintiff in error.

BLANDFORD & GARRARD; HINTON & Sons; E. M. BUTT, for defendant.

WARNER, Chief Justice.

William P. Jowers brought his action against James L. Baker, in Marion superior court, alleging that on the first of September, 1870, he made and entered into a parol contract

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Jowers vs. Baker.

with the said Baker for the purpose of sawing lumber for sale, in which the said Jowers was to furnish the engine and boiler with saw-mill attached, and place them on the land of said Baker, in running order, and keep them in proper repair for sawing lumber, the said Baker to furnish timber and saw

w-logs, at his own expense, to meet the demand of said mill and keep the same constantly runving during the continuance of the contract, which was to continue for six months from the time the mill was placed on Baker's land, and longer if agreed to by the parties, but in no event should the mill be stopped by either without ample notice to the other party.

Said plaintiff averred his faithful compliance with the terms of said contract on his part; and that with the consent of said Baker, the said plaintiff rented the said engine, boiler and saw-mill to one John G. Lidy, who' ran the same with the said Baker, under the same terms and stipulations of the contract as above set forth, from the 18th November, 1870, to the 17th February, 1871, when at the instance of said Baker, the said Jowers dispossessed the said Lidy and took possession of said mill, and under the contract before stated, with said Baker, continued the said business until 5th June, 1871, and that one-half of the lumber cut by, said mill belonged to each, said Jowers and said Baker; that Baker failed to comply with the contract, in that he did not furnish saw-logs to suit the capacity of the mill, in consequence of which the said mill was idle one half of the time the said Jowers was in possession, and instead of cutting seven thousand feet, (its capacity,) only cut thirty-five hundred feet per day, and thereby said plaintifflost and was damaged seventeen hundred and fifty feet of lumber (his half) per day for eighty-five days, during which time the mill was running under the said contract, to his loss and damage one hundred and sixty one thousand two hundred and fifty feet of lumber, of the value of $1 50 per hundred feet, equalling $2,419 75. Plaintiff further averred that during the existence of said contract, said Baker stopped said mill without notice to him, and the same stood idle for one month, to plaintiff's loss and damage $1,365 00.

VOL. LV. 13

Jowers vs. Baker.

After the evidence had closed, and upon the submission of the case to the jury, the court charged that “it was the duty of the court to construe the pleadings, and that the meaning of the contract as set out in the declaration was that the mill was to be put up on Baker's land, to be superintended by Jowers, for the purpose of cutting lumber for sale, and that Baker agreed to furnish as many logs as would meet the demand for the sale of the lumber so cut, of such logs as grew on Baker's land, and if Baker furnished logs sufficient to meet the demand of the mill, then Baker had not violated bis contract." Which said charge and construction is assigned as error.

The court further charged that "the contract, as set out in the declaration, did not mean that Baker agreed to furnish logs to keep the mill running to its full capacity for sawing, but it meant that Baker should furnish only such a quantity of saw logs as would supply the demand of the purchasers for lumber from said mill." Which said charge and construction is assigned as error. The court further charged that “the true measure of damages in the case was the amount of money that it would have cost Jowers to furnish logs sufficient to supply the demand for lumber made upon the mill." Which is assigned as error. The jury found a verdict for defendant.

In our judgment the court erred in its charge to the jury as to the construction of the contract alleged in the plaintiff's declaration. The fair and legitimate interpretation of the words of the contract is not that “Baker should furnish only such a quantity of saw-logs as would supply the demand of purchasers of lumber from said mill,” but the fair and legitimate interpretation of the words of the contract is that Baker was to furnish timber and saw-logs, at his own expense, to meet the demand of the said mill and keep the same constantly running during the continuance of the contract. The plain and obtious meaning of the words of the contract is, that Baker was to furnish timber and saw-logs to keep the mill constantly running for six months, that is to say, to meet the

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