Burnett v. Boukedes, 17898

• Decision Date: 09 April 1962
• Docket Number: No. 17898,17898
• Citation: 125 S.E.2d 10,240 S.C. 144
• Parties: Jackson S. BURNETT, as Trustee for the Stockholders of W. E. Burnett Estate, Inc., Appellant, v. George J. BOUKEDES and James G. Boukedes, of which James G. Boukedes is, Respondent.
• Court: South Carolina Supreme Court

Page 10

125 S.E.2d 10

240 S.C. 144

Jackson S. BURNETT, as Trustee for the Stockholders of W. E Burnett Estate, Inc., Appellant, v. George J. BOUKEDES and James G. Boukedes, of which James G Boukedes is, Respondent.

No. 17898.

Supreme Court of South Carolina.

April 9, 1962.

Holcombe & Bomar, Spartanburg, for appellant.

Hyatt, DePass & Raman, Spartanburg, for respondent.

MOSS, Justice.

Jackson S. Burnett, as trustee for the stockholders of W. E. Burnett Estate, Inc., the appellant herein, brought this action in Claim and Delivery against George J Boukedes; and James G. Boukedes, the respondent herein, for immediate possession of an air conditioning unit, or its value, the sum of $750.00, in case recovery of possession thereof cannot be had. At the time the action was instituted, the appellant filed the necessary bond with the Sheriff, and the air conditioning unit was seized by him and delivered to the possession of appellant. The respondent filed no replevin bond.

It appears from the original complaint and the record that the appellant owns a restaurant building located on East Main Street in the City of Spartanburg, known as 'Fernwood Drive-In'. On January 1, 1953, this building was leased to George J. Boukedes for a term of five years, ending December 31, 1957, at a monthly rental of $170.00, and in addition thereto, four percent on the lessee's gross business over $50,000.00 a year, which latter provision was waived by the respondent because of the inability of the lessee to comply therewith. In the operation of the restaurant, George J. Boukedes purchased and installed in the building certain equipment, including one Frigidaire air conditioning unit. It is admitted that the lessee defaulted in the payment of his rent for several months and that on November 15, 1957, he owed the appellant eleven months back rent amounting to $1,840.00. The complaint alleges that on November 15, 1957, in derogation of the appellant's right to have all equipment retained in said restaurant building, as security for the payment of said rent, George J. Boukedes removed from the said building the air conditioning unit, and purported to sell it to his father, the respondent herein. The original complaint also alleged that the appellant was entitled to have the air conditioning unit remain in the restaurant building as security for the payment of the accrued and unpaid rent and has demanded the return of the same to the building in order that the appellant might exercise his security rights with respect thereto. The respondent has failed and refused to return the said unit to the restaurant building, or to the appellant. It is then alleged that the appellant is entitled to the possession of the said air conditioning unit and that the respondent unlawfully detains the said unit from the appellant. It is then alleged that the actual value of the air conditioning unit is $750.00. We should point out that the summons and complaint were served upon the respondent but were never served upon George J. Boukedes.

The respondent, within the time required by statute, served an answer and counterclaim. Thereafter, the appellant served a notice of motion for the respondent to correct his pleadings in certain particulars. The respondent served a notice of motion to require the appellant to make his complaint more definite and certain, by 'alleging what the plaintiff's security interest or rights are'. These motions were heard by Honorable Steve C. Griffith, the then Presiding Judge, and he entered an order, (1) requiring the respondent to separately state and designate his counterclaim in accordance with Circuit Court Rule 18; and (2) that the security rights of the appellant be interpreted to mean those rights which he claims under a landlord's lien for rent.

The respondent demurred to the complaint upon the grounds that the appellant could not enforce a landlord's lien by Claim and Delivery and that the action was not commenced within ten days after the removal of the air conditioning unit from the rented premises. The respondent also served another answer separately stating and designating his counterclaim. The demurrer of the respondent was heard by Honorable George T. Gregory, Jr., Presiding Judge, and on October 30, 1959, he filed an order wherein he found that the air conditioning unit was removed from the rented premises on November 15, 1957, and that this action was not instituted until April 21, 1958, this being more than ten days after the air conditioning unit was removed from the premises. He also held that Section 41-151 et seq., of the 1952 Code of Laws of South Carolina, provides the statutory procedure whereby a landlord may enforce collection of rent, and that Section 41-156 of the Code, restricts the time in which the landlord may distrain on property removed from the premises to ten days after such removal. The demurrer of the respondent was sustained, but the appellant was allowed to file and serve an amended complaint.

In due time the appellant filed an amended complaint, wherein he alleged, in addition to what was in the original complaint, that because of the repeated assurances of George J. Boukedes that he would pay his rent in full, refrained from distraining upon the contents of the building and permitted George J. Boukedes to remain in the building as tenant. He further alleged that the said George J. Boukedes did, on November 15, 1957, without the knowledge or consent of the appellant, remove the air conditioning unit from the building and purported to sell it to his father, the respondent herein. The said George J. Boukedes then left the City of Spartanburg and the appellant was unable to find him or to discover the whereabouts of the air conditioning unit. It was then alleged that the respondent, conspiring with his son to defeat the appellant's right of distraint, had the air conditioning unit placed in an apartment house owned by him, where it was concealed from the appellant for several weeks. It was further alleged that the respondent, conspiring with his son to defeat the appellant's right to distrain upon the air conditioning unit, and while the respondent was in possession of same, informed the appellant that he did not know where the air conditioning unit was but would write his son and attempt to locate it for the appellant. It is then alleged that the appellant, through his independent efforts, located the air conditioning unit and brought this action to recover the possession of the said unit.

The respondent answered the amended complaint interposing a general denial and admitting that the air conditioning unit, having a value of $750.00, was removed from the rented premises on November 15, 1957, being at that time purchased by him from his son. The answer further alleged that the appellant lost his right to enforce his rent claim by not distraining upon the air conditioning unit within ten days after the same was removed from the rented premises. The respondent also filed a counterclaim wherein he alleged that he purchased the air conditioning unit from George J. Boukedes on November 15, 1957 and removed it on the same sate from the rented premises. He further alleged that he 'is entitled to possession of said air conditioner and also entitled to possession at the time it was seized pursuant to this Claim and Delivery action.' He further asserts that since the seizure of the air conditioning unit he has been deprived of its use, all to his actual damage in the sum of $1,000.00. The prayer of the counterclaim was that the complaint be dismissed and that the respondent have judgment against the appellant for $1,000.00, with interest from the time the appellant seized the air conditioner.

This case came on for trial before Honorable J. B. Ness, Presiding Judge, and a jury. At the close of the testimony both parties made motions for the direction of a verdict and conceded that there was no jury issue. The trial Judge dismissed the jury and took the matter under advisement and on July 3, 1961 he awarded judgment against the appellant for $750.00, the agreed value of the air conditioning unit. Thereafter, the appellant moved to amend the said order and such was denied. In due time the appellant properly appealed to this Court.

There is no doubt from the testimony that George J. Boukedes was a tenant of the appellant and that at the time that the air conditioning unit was removed from the premises that he owed rent in the amount of $1,840.00. It is also a conceded fact that the air conditioning unit was removed from the rented premises on November 15, 1957. The appellant admits that in January of 1958 he discovered that the air conditioning unit had been removed from the rented premises. He testified that he made an effort to find George J. Boukedes and to discover the whereabouts of the air conditioning unit. He further testified that he went to see the respondent, the father of George J. Boukedes, and asked him, 'What happened to the air conditioner and the cash register?' The respondent's answer was, 'I don't know' but 'I will write my boy and find out.' Some two or three weeks later, the appellant telephoned the respondent and got no further information. The appellant also testified that the respondent told him very definitely that he did not know where the air conditioner was. Thereafter, the appellant, by contacting an appliance dealer in the City of Spartanburg, found out that the air conditioner was removed on November 15, 1957 from the restaurant and stored in an apartment house of the respondent. The respondent testified that he bought the air conditioner from his son on November 15, 1957, and the same was removed from the restaurant building and stored in an apartment house owned by him. However the trial Judge ruled that since the respondent had not set up bona fide purchaser without notice as a defense, this testimony was not proper.

The appellant made a motion...