dissenting.
Tomlinson, as agent for Maxwell, rented certain lands to Driver. At the time of the contract the fences were defective *17and both parties knew it. There was no stipulation that they should be made better, and none devolving the duty to repair upon either. The rent agreed upon, with a full knowledge of the condition of the fence, was one-third of corn and one-fourth of the cotton made on the place.
The plaintiff proved that from one hundred and thirty to one hundred and fifty bushels of corn and three or four bales of cotton were raised on the place; that corn was worth one dollar per bushel and cotton thirteen cents per pound. This proof was by Tomlinson, who had no interest in the case.
The defendant proved by himself that he raised on the place four bales of cotton and one hundred bushels of corn ; that about forty bushels oí corn' was destroyed by the hogs and cows; that the cattle destroyed all the cotton except two light bales weighing four hundred pounds each ; that on account of bad weather and the cattle running over the cotton before it was gathered, it was rather poor, and he had sold both bales at eleven cents per pound; that defendant measured plaintiff his full portion of corn due according to said contract and put it in a crib to itself, and also cotton fully one-fourth, and put it to itself; that the corn actually measured and cribbed for plaintiff, was thirty-three bushels; that storms came, and the place was very sickly and the weather bad, and hogs and cattle trespassed on the crop and prevented its proper gathering. The court charged the iury and they found for plaintiff $99 50.
I think that the jury found right. I have doubt that they believed the defendant’s story. I doubt that they ought to have believed it. At one breatly he swore that the cattle destroyed all the cotton except two light bales, exactly four hundred pounds each, and these he carried to Americus and got eleven cents a pound for. In the next breath he swore that he put the landlord’s part of the cotton, fully one-fourth, he swears, to itself, and kept it for him. At one breath he swears that he made one hundred bushels of corn, and the cattle eat up forty bushels of it. At the next, that he cribbed exactly thirty-three bushels for the landlord. His whole de*18fense is that he was blockhead enough to rent a piece of land so poorly fenced that when he rented it he knew it would not turn cattle or even hogs; and yet when cattle and hogs were depredating upon it, though he thought it was the landlord’s duty to repair and keep them out, he suffered the crop to be destroyed rather than notify him or his agent.
I repeat that I cannot find it in my heart to condemn the jury for the verdict they rendered. It seems to have been moderate; it was only $99 50. The proof fully authorized it, and I think it should stand, though the court may have erred upon questions of law, as this court has ruled so often that if I undertook to enumerate the cases it would spin this opinion into a yarn unendurably long. Especially, when no motion is made for a new trial, should this oft-repeated rule be adhered to, and still more should it prevail in a case where no human being — no neighbor, no son, no employee — witnessed the destruction, wrought upon this man’s crops by the storm and the sickness, the hogs and the cattle, except himself! And when even he, who can pack 'two light bales of cotton with so much accuracy that neither of them shall weigh more than just exactly four hundred pounds, cannot or does not tell the jury how much of the crop was destroyed by each of these calamities — sickness, storms and cattle! It'would require wonderful skill in ciphering to determine from the premises given by his testimony exactly how much corn and how much cotton each of these causes of ill luck produced, unless, indeed, i.t be the law that the landlord shall warrant not only a good fence but no sickness and no storms. How any jury could cipher out an approximation to a proper deduction to be made from the landlord’s rent from these cattle, damage feasant, all mixed with the sickness and storm in uncertain proportions, I cannot imagine, and if it be demanded that they shall apportion such damage between -landlord and tenant, the beginning would surpass the skill of Kepler or Sir Isaac Newton. I shrink from putting such a task upon a jury, and for this reason I dissent 'from the judgment of the court.
*19But lias any substantial error been committed by the court below? Let us see. Two errors are assigned : first, his refusal to charge as requested; secondly, the charge given. He was requested to charge as follows: “That in making the contract of rental between plaintiff and defendant, if nothing was said about necessary repairs, and who should keep the premises in suitable repair for cropping in said year 1873, for which said contract was made, the plaintiff should have kept said premises in repair, and if the crops, or a portion of the same, was destroyed by cows and hogs, for want of proper repairs done on the fence around said premises, that plaintiff could not recover if the amount destroyed was equal to what his portion of the crops would have been.”
This request would announce the law, that the landlord, without notice, must see to it that the fence around the place he rents is good and kept good all the year. I do not understand that my brethren hold this extreme view. If pronounced law, it would unsettle all the ideas the profession entertain of it, and would plunge the relation of landlord and tenant into as much confusion and difficulty as a jury would encounter in settling the contest for supremacy between storm and sickness and cattle, without any data being furnished to show which did the most damage. The landlord may live a hundred miles off. It makes no difference. He must move in the neighborhood of the place he rents, or hire somebody to go around it all the year, every week or two. It has always been thought heretofore to be the duty of the cropper to take care of his crop, and as the easiest way of doing it to go round his fence occasionally and mend the rails which break or rot, and put up the fence if storms have blown it down or hunters have left it down.
But the second error alleged against the court below is the charge he did give. What is that? It is “that if defendant rented land from plaintiff with a bad fence around the premises at the time of renting, and a large portion of the crop was destroyed by hogs and cows by reason of said defective fence, yet defendant was liable to pay full rent for the prem*20ises unless there was an express contract at the time of rental that plaintiff was to repair the fence; that plaintiff was not required to keep the fences in repair if the fences were not in repair at the time of renting; that if defendant failed, for any cause, to gather the crops in proper time, and the same were injured and damaged, that defendant was still liable to pay plaintiff rent for the amount of corn and cotton made on the place.” This charge, when we look at it in connection with the request which preceded it, and when we analyze it, means this: that when the fence is defective when the farm is rented, and the tenant sees it and knows the defect, he makes his bargain in reference to its then condition; he agrees to pay so much rent for it as it stands, and the landlord is only bound, on notice, to keep it as good as it was; he should have notice if it gets worse, and if, as in the ease at bar, the tenant fail to give any notice or to keep the fence in the condition it was, and for any cause, by cattle or storm or sickness he fail to gather it, he still must pay rent for what he makes. His contract is to pay one-fourth and one-third of cotton and corn he makes. To make, means to gather and house, to fit it for use or market. If after he lays by the crop, for want of keeping up the fence himself and charging the landlord for it, or for -want of notice to the landlord; if for this neglect of a most reasonable duty on his part, the crop is lost or destroyed in whole or in part, he should still pay the rent. And such I take to be the meaning of the statute, (Code, sec. 2284.) It makes him liable to keep the premises in rejjair. What repair? The repair they were in when he rented them. Who will know if they get out of repair? The tenant, because he occupies and uses them. How shall the landlord know? By notice from the tenant; he is absent, he can know in no other way. It is no hardshfy on the tenant to notify him; it is a hardship on him to visit the tenement or farm and pry out leakages or deficient fences. There is no evidence in this record that this tenant ever notified the landlord when this fence got worse, if it did. It is probable that it did get so from the wind and storm and the natural *21decay. No damage is complained of till the gathering of the crop, and the storms poured and the winds blew and the sickness came about that time, and the fences fell then, most probably because of the storms, and were not repaired because of the sickness.. This construction accords, too, with the decisions of this court, that notice must be given by the tenant in such a case, or he must repair and charge the landlord and take it out of the rent. The duty is on the landlord to keep in repair, but the duty is on the tenant to inform him when it is needed. It was so decided in Vason vs. City of Augusta, 38 Georgia Reports, 542, and again held in Whittle vs. Webster, 55 Georgia Reports, 180. In the latter case the chief justice said what I say here: “If a tenant should rent a dilapidated or leakey store-house, with full knowledge of its actual condition, at a reduced price in consequence thereof, and puts his goods therein, and the same are damaged, he would not then have any legal or just cause of complaint against his landlord.” And again, he said, “and, if after the premises have been rented, the same become unfit by reason of the roof of the house becoming leaky, or other, similar cause, so as to render the house unsuited for the purpose for which it was rented, the landlord is bound, upon notice being given to him of the defect by the tenant, to make the necessary repairs within a reasonable time thereafter, and upon his failure to do so, and 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 opinion Judge Bleckley and myself concurred. I adhere to it, the tenant must give notice to the landlord to repair. The rule, just everywhere, is the more expedient in the farming operations of our people.
It becomes all important in cases of this sort not to extend or expand the rule one iota in favor of the tenánt. As a practical question, it pervades'the state and its great agricultural interests everywhere; and it is all-important, in my judgment, so to construe the act as to require the tenant to notice his fences and tell the landlord that they need repair, *22or hold him responsible for his neglect. For these-reasons I dissent from the judgment of this court, and would affirm that of the court below.