Biber v. Dillingham

• Decision Date: 22 March 1919
• Docket Number: 10173.
• Parties: BIBER v. DILLINGHAM.
• Court: South Carolina Supreme Court

98 S.E. 798

111 S.C. 502

BIBER v. DILLINGHAM.

No. 10173.

Supreme Court of South Carolina

March 22, 1919

Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, Judge.

Suit by Rosalie A. Biber as landlord against W. R. Dillingham tenant, brought before a magistrate under Civ. Code 1912, § 3509, to eject the defendant, tenant. Judgment for the landlord, which the circuit court, upon appeal, reversed, and the plaintiff appeals. Judgment of the circuit court affirmed.

I. A Phifer, of Spartanburg, for appellant.

Lyles, Daniel & Drummond, of Spartanburg, for respondent.

GAGE J.

Proceeding before a magistrate, under section 3509 of the Code of Laws, by a landlord to eject a tenant. The magistrate decided the case for the landlord; the circuit court reversed that judgment; and the appeal here is from the judgment of the circuit court.

The pith of the judgment below is that "the evidence not only fails to show that notice was given, but on the contrary shows that it was not," and that is the only issue in the case; and it is largely an issue of fact.

The appellant suggests at the outset that the circuit order does not evidence that which the court decided; that the court in fact did not decide that notice was not given, but only that sufficient notice was not given. But the words of the order constitute the only evidence of what the court decided, and the words we have quoted are plain. Besides that, insufficient notice in a case like this is not notice at all.

The appellant admits that the tenant held "by the month on thirty days' notice; Dillingham (the tenant) to notify Scruggs [the landlord] thirty days, or Scruggs to notify Dillingham thirty days." Such then was the contract betwixt the parties. "As the parties in this case have entered into a contract as to the time and mode of terminating the tenancy, their rights are to be determined by the fair construction of that contract, and not by the technical rules which apply to the termination of a tenancy at will where there is no contract on the subject." May v. Rice, 108 Mass. 152, 11 Am. Rep. 328.

The general issue of fact is, was the contract carried out by the landlord? and the particular issue of fact is, did conduct of the landlord, when he went to see the tenant to get possession, amount to a notice by the landlord to the tenant to vacate the house within 30 days after the day of such interview? It is not pretended that the landlord gave to the tenant formal notice in writing that the house must be given up within 30 days from the giving of the formal notice. It is not pretended that at the interview betwixt the parties, set up by the landlord for notice, that the landlord by word of mouth expressly told the tenant to vacate within 30 days thereafter. The only contention is that what was said at the interview was a substantial and sufficient notice of the landlord's demand that the tenant should vacate within 30 days thereafter. Whether that be so is a mixed question of law and fact. The burden was upon the landlord to prove the contention by a preponderance of the evidence. 16 R. C. L. § 628.

It is true that ordinarily a notice is not to be strictly construed; it being sufficient if the intention of the party to exercise the option is fairly communicated. 16 R. C. L. § 629.

The plaintiff had two witnesses, Scruggs, a son of the former landlord, and Biber, the husband of the then present landlord.

It is true the landlord told the tenant she wanted possession of the house, and what was said amounted to a demand for the present possession of the house. But that was not pursuant to...