Glessner v. Longley

Lumpkin, J.

I concur in the judgment of reversal. I think that, as far as it claimed set-off or recoupment, the defendant’s pleading was insufficient, and the evidence did not authorize the recovery had by him against the plaintiff, certainly as to most of the items. But where the plaintiff sued the defendant, contending that the latter had wrongfully occupied the premises after termination of a lease, in so far as the plea sought to set up that the defendant’s possession was not wrongful, and thus defend himself from a recovery on that ground, it was not demurrable, whether the facts alleged made out a case of a binding contract for a definite time or for a reasonable time to allow the defendant to obtain another house, or only showed him to be in possession permissively,. or under dealings between the parties which negatived the wrongful character of such possession. An allegation of possession of a tenant, even if it should be under a unilateral contract, at least until withdrawal by the landlord, is a denial of unlawfulness of possession.