1. The evidence, viewed in its most favorable light to upholding the verdict in favor of the defendants, authorized the jury to find that there had been an open running rental transaction between the plaintiff and the defendants from the time they entered the premises on August 12, 1939, until they moved therefrom April 24, 1941; that the occupancy was continuous; and that all advancements made, even though they were overpayments made during the first year of the occupancy, were but branches of the main rental transaction, and these advancements became constituent parts of the main rental transaction.
2. "Ordinarily a promissory note contains only the maker's obligation to pay." Where the occupancy of the rented premises was continuous and for more than one year, the mere giving of the note reciting that, ". . after date I promise to pay to the order of Marion W. Stembridge three hundred dollars, payable as follows: twenty-five dollars on Sept. 1, 1940, and twenty-five dollars on the first day of each month thereafter until the full amount is paid, for value received, . ." even though it was for the second year's rental did not necessarily show that the second year was not an integral part of the entire running rental transaction which also included the first year.
3. The plaintiff, by basing his action on this note alone, could not deprive the defendants of their right to show, if they could, that all payments of rent during the entire period they continuously occupied the rented premises, under the continuous running transaction, were elements from which the final balance was to be ascertained.
4. The judge did not err in overruling the demurrer to the amendments to the defendants' counter-affidavits.
5. The evidence authorized the verdict.
DECIDED JUNE 17, 1942. REHEARING DENIED JULY 27, 1942. Stembridge had a dispossessory warrant issued against Mr. and Mrs. Sloan. In his affidavit he deposed: "That the said tenant fails to pay rent now due on said house and premises (or that said tenant is holding said house and premises over and beyond the *Page 687 term for which same were rented or leased to him); that the said owner desires, and has demanded possession of said house and premises and the same has been refused" by the said tenants.
The tenants filed counter-affidavits and denied that the rent claimed was due, and subsequently amended alleging that the plaintiff wanted $35 per month for the apartment but agreed to rent it for $25 per month if the defendants would renovate the apartment if they desired any improvements; that the defendants accepted the plaintiff's proposition and immediately had the living room and bedroom floors sanded, varnished, and shellacked, the ceilings and walls in four rooms and the woodwork in the living room painted, and paid the plaintiff $25 for the month of August, 1939; that the defendants occupied the apartment from August 12, 1939, to March 18, 1941, the date of the issuance of the dispossessory warrant, paying the total sum of $540.50 in rent during that period; that the defendants had continuously occupied the premises from August 12, 1939, to March 18, 1941, and which aggregated a period of nineteen months and eighteen days, and that at $25 per month the total accrued rent was $490, and that the plaintiff's own receipts as held by the defendants totaled $540.50 and gave the defendants a credit of $50.50 with the plaintiff and the rent paid until May 18, 1941; that the defendant R. G. Sloan, a traveling salesman, working on a commission basis, when commissions were large in order to provide for his family in the months when the commissions would be small, would pay as much as $35 some months by way of keeping his rent well paid in advance; that the defendants are not asking for recoupment, offset, or endeavoring to recover any overpayments, but are merely asking that a proper credit be had, and that when the payments they have made as rent on the same premises that they had continuously resided in are credited they will have a credit as of March 18, 1941 of $50.50; that the defendants are hereby attaching receipts that were given in the handwriting of the plaintiff, August 12, 1939, $25; September 1, 1939, $25; October 6, 1939, $35; November 11, 1939, $35; December 7, 1939, $35; January 1, 1940, $25; February 16, 1940, $35; March 16, 1940, $35; April 6, 1940, $35; May 13, 1940, $35; June 14, 1940, $30; July 29, 1940, $15; August 3, 1940, $35; September 2, 1940, $25; October 5, 1940, $20; October 11, 1940, $5; November 2, 1940, $25; December 7, 1940, $25; *Page 688 January 11, 1941, $18; February 8, 1941, $12.50; February 15, 1941, $10; totaling $540.50; that though the rent was not due and even though it was paid until May 18, 1941, they moved out of and vacated the premises on April 24, 1941; that the plaintiff swore out a distress warrant on March 18, 1941, alleging that the defendants owed $44.17 as past-due rent; that the defendants filed a counter-affidavit and an amendment alleging that they had paid their rent until May 18, 1941, and that a verdict was awarded in their favor in the justice's court of the 320th G. M. of Baldwin County; that the defendants did not ask for recoupment or offset or request to recover any of the overpayments, and specifically asked the jury not to award them a judgment for the overpayments, and the defendants state that although the overpayments were more than enough to pay the rent from March 18, 1941, to April 24, 1941, because the rent was paid up to May 18, 1941, they are not asking for a recovery of the difference. The defendants contended that they merely pleaded payment and did not ask for any judgment over and against the plaintiff.
The plaintiff demurred to the amendment on the ground that the alleged overpayments made during the first year the defendants occupied the premises could not be allowed as against a dispossessory warrant seeking to collect the rent under the second year's rent contract, even though the tenants' possession had been continuous from the time they entered the premises until after the issuance of the warrant. The plaintiff also demurred on the ground "that as against the dispossessory warrant no plea of overpayment of any kind under a previous rent contract may be allowed." The judge did not err in overruling the demurrer.
On the trial the plaintiff introduced a note signed by the defendant R. G. Sloan, the material part of which is as follows: "8/10/40. 19 —, . . after date I promise to pay to the order of Marion W. Stembridge three hundred dollars, payable as follows: twenty-five dollars on Sept. 1, 1940, and twenty-five dollars on the first day of each month thereafter until the full amount is paid, for value received, payable at ____, with interest after maturity until paid, at eight per cent. per annum." The remainder of the note is in the customary form providing for collection of attorney's fees and with waiver of homestead exemption. The plaintiff testified: "On August 10, 1940, I rented to R. G. Sloan *Page 689 an apartment at 208 North Columbia Street in the City of Milledgeville for one year from September 1, 1940, to September 1, 1941, for $25 per month to be paid in advance. I took R. G. Sloan's note for $300 to be paid $25 per month beginning September 1, 1940, and $25 each month thereafter until paid." On cross-examination he testified: "The receipts from August 12, 1939, through September 2, 1940, were given by me under a previous rent contract, and the other receipts were given by me under the contract upon which I am suing."
The defendants introduced evidence which in effect substantiated the allegations in their counter-affidavits. The receipts introduced by the defendants which were in the handwriting of the plaintiff showed payments in excess of $25 per month for the whole period during which the tenants occupied the apartment. The plaintiff objected to all receipts tending to show payment or overpayment of rent for the first year the defendants occupied the premises on the ground that the contract for each of these years was a separate contract. The objection was overruled. If these receipts had been ruled out, the evidence would have shown rent due on the two years' rentals at the time of the issuance of the dispossessory warrant. The plaintiff contends that the two questions now before this court are: (1) "May a plea of alleged overpayment under a previous rent contract be made as against the dispossessory warrant?" And (2) "May evidence intended to set up a claim for overpayment under a previous rent contract be admitted as against the dispossessory warrant?" The defendants contend that their plea is one of payment, and that the written receipts of the plaintiff, when taken as a whole over the period that they continuously occupied the premises, showed that they had paid the plaintiff in full, and that the evidence of the defendants sustained their plea. Under the rule of law as we understand it, after verdict we must construe the evidence in the most favorable light to the upholding of the verdict (Vandeviere v. State, 58 Ga. App. 18 (197 S.E. 338), and where the evidence is conflicting, while the trial judge may grant a new trial in the exercise of a legal discretion this court must accept the *Page 690 findings of fact of the jury below if there was any evidence to support them. Smith v. State, 91 Ga. 188 (17 S.E. 68). And the evidence viewed in its most favorable light to the defendants authorized the jury to find that there was an open running transaction between the plaintiff and the defendants from the time they entered the premises August 12, 1939, until they moved therefrom April 24, 1941. All the advancements made (even though they were overpayments made during the first year of the occupancy) were but branches of the main rent transaction, for in making the advancements the defendants recognized the existence of an unadjusted rent transaction, and not only assented to the application of the advancements thereon as one of the elements from which their final balance was to be ascertained, but that the plaintiff, by his acceptance of the overpayments during the first year, also recognized the existence of the unadjusted rent transaction during the second year. "Ordinarily a promissory note contains only the maker's obligation to pay. If the note does not purport to express the contract in pursuance of which it is executed, and the contract rests in parol, its terms may be proved by parol." Anthony Shoals Power Co. v. Fortson,138 Ga. 460, 463 (75 S.E. 606).
The defendants' evidence was to the effect that the basis of the overpayment during the first year was not a wholly different transaction from the obligation to pay the rent the second year, which obligation for the second year's rent was evidenced by the note introduced by the plaintiff, and this note contained only the tenants' obligation to pay. The record does not disclose that the note contains the entire contract between the parties. The note does not state that it was for rent, nor does it describe or even refer to any particular premises rented. The record discloses that the defendants rented the premises in question and thereafter continuously occupied them until the dispossessory proceedings were instituted. The plaintiff, by basing his action on the note alone, can not deprive the defendants of their right to show, if they can, that all the payments of rent during the entire continuous period that they occupied the rented premises were elements from which the final balance was to be ascertained. Hubbard v. French, 1 Pa. Super. 218; Petit v. Teal,57 Ga. 145; Thomas v. Mitchell, 74 Ga. 797; Sikes v.Carter, 30 Ga. App. 539 (118 S.E. 430). To illustrate: suppose a part of the rent had been due to the landlord for some *Page 691 of the months during the first year and a part for some of the months during the second year for the premises which the tenants had continuously occupied, and the landlord had elected to introduce evidence to this effect, and the jury had so found, can it be said that the landlord could not have recovered under the dispossessory warrant and the other pleadings in the instant case the final balance for the two, or the part of the two, years which the tenant occupied the premises immediately preceding the dispossessory warrant? We think not. See in this connectionJohnson v. Klassett, 9 Ga. App. 733, 737 (72 S.E. 174);Roberson v. Simons, 109 Ga. 360 (2) (34 S.E. 604). The jury seem to have rejected the plaintiff's contentions as to the controlling facts, and to have accepted the defendants' evidence and found the facts to be as set forth in the defendants' counter-affidavits which were based on the payments they had made during the entire rental transaction, beginning August 12, 1939, and ending April 24, 1941, when the tenants moved out. We see no trace in the evidence of any purpose by either party to give or claim any sum by way of gratuity. This was a renting of the premises, and the jury were authorized to find, under the defendants' evidence, that there was an open running transaction of payments and overpayments by the defendants of various amounts on the rent, and that each party recognized the existence of the unadjusted rent transaction, and that each party assented (did a passive act of concurrence) to the application of the advancements of the amounts paid under the entire running transaction, and that all of the payments of rent during this period were elements from which the final balance was to be ascertained. Thus, if the jury found that the rental transaction was for $25 per month for the continuous period that the tenants occupied the premises, then they could find that the tenants were entitled to be credited with each and every payment or overpayment which they had made during their continuous occupancy of the premises, all of which were made on an open running rent transaction, and that they would not, under their plea and their evidence, be due the plaintiff any rent. And thus the jury were authorized to find that the plea of payment was sustained. SeeGrimes v. Reese, 30 Ga. 330, 333; Mell v. Moony,30 Ga. 413, 415; Lufburrow v. Henderson, 30 Ga. 482;Willis v. Harrell, 118 Ga. 906, 909 (45 S.E. 794);Carter v. Sutton, 147 Ga. 496 *Page 692 (94 S.E. 760); Lamar v. Sheppard, 84 Ga. 561, 569 (10 S.E. 1084);Hayes v. Atlanta, 1 Ga. App. 25, 26 (57 S.E. 1087); Hill v. Federal Land Bank of Columbia, 186 Ga. 889, 891 (199 S.E. 177).
The judge did not err in overruling the motion for new trial.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.