Hairston v. Carolina Wholesale Furniture Co., 0878

• Decision Date: 17 December 1986
• Docket Number: No. 0878,0878
• Citation: 291 S.C. 371,353 S.E.2d 701
• Court: South Carolina Court of Appeals
• Parties: Peter HAIRSTON, Respondent, v. CAROLINA WHOLESALE FURNITURE CO., d/b/a Farena Furniture Co., Appellant. . Heard

Page 701

353 S.E.2d 701

291 S.C. 371

Peter HAIRSTON, Respondent, v. CAROLINA WHOLESALE FURNITURE CO., d/b/a Farena Furniture Co., Appellant.

No. 0878.

Court of Appeals of South Carolina.

Heard Dec. 17, 1986.

Decided February 9, 1987.

Capers G. Barr, III, of Barr, Barr and McIntosh, Charleston, for appellant.

Gedney M. Howe, III, of Gedney M. Howe, III, P.A. and Leonard L. Long, Jr., and Stephen A. Spitz, both of Long, Smith and Jordan, Charleston, for respondent.

BELL, Judge.

Dr. Peter Hairston brought this action in magistrate's court to eject his tenant, Carolina Wholesale Furniture Co., for failure to pay rent when due. The jury returned a verdict in favor of Carolina Wholesale, and the magistrate affirmed. On appeal to the circuit court, the judge reversed the magistrate and issued an order of ejectment against Carolina Wholesale. Carolina Wholesale appeals. We affirm the circuit court order.

In 1978, Carolina Wholesale entered into a written agreement to lease a commercial warehouse from Dr. Hairston for five years, with an option to renew for six additional five-year terms. The monthly rent of one thousand nine hundred sixty dollars is "payable in advance" to Read & Read, Inc., Dr. Hairston's agent, and "due on the 15th day of each month." In addition, Carolina Wholesale is responsible for a pro rata share of any increase in property taxes during the term of the lease. The lease contains the following late payment provision:

22. Tenant agrees: That Tenant will promptly pay said rent on or before the times stated above, and if any part of the rent shall remain due and unpaid after the same shall become due and payable, this lease shall be in default and Landlord shall have the option of declaring the balance of the entire rent for the entire term of this lease to be immediately due and payable ... or elect to evict Tenant and terminate this lease; however, Landlord reserves the right, at Landlord's sole option, to reinstate this lease upon Tenant's payment of the rent due plus ten percent (10%) late charge.

The lease also recites "time is the essence of all the terms and provisions of this lease." Carolina Wholesale has operated a retail furniture store on the leased property since 1978, having exercised its renewal option at the end of the first five-year term.

This dispute arises from the circumstances surrounding the June 1984 rent payment. Carolina Wholesale's bookkeeper mailed the monthly rent payment on the eighth of that month, but inadvertently misaddressed the envelope so that the payment never reached its destination. That same day, Read & Read mistakenly sent Carolina Wholesale a notice of past due rent, which purported to charge a late fee of one hundred ninety-six dollars. Enclosed with the notice was a letter informing Carolina Wholesale it owed an additional $271.26 for increased property taxes in 1983.

On June 19, Read & Read, who had as yet received no rent payment for June, sent Carolina Wholesale a letter terminating the lease and instructing Carolina Wholesale to vacate the property. The following day, Carolina Wholesale's attorney spoke on the telephone with Emerson Read, Jr., one of the partners in Read & Read. They discussed Carolina Wholesale's pro rata share of the 1983 property tax increase, but no mention was made of the default or the termination letter. After receiving the termination letter, Carolina Wholesale immediately mailed Read & Read a replacement check for the rent, along with payment for the increased property taxes. When Read & Read received the checks on June 22, they returned them to Carolina Wholesale.

Dr. Hairston filed an application in magistrate's court to eject Carolina Wholesale for failure to pay rent when due. The matter was tried before a magistrate and a jury, and the magistrate affirmed the jury's verdict in favor of Carolina Wholesale.

Dr. Hairston appealed to the circuit court. The circuit judge reversed the magistrate's order and issued a warrant of ejectment. He found the parties had negotiated and bargained for the lease terms, which unequivocally require prompt payment of rent. He concluded, therefore, Carolina Wholesale was in default and Dr. Hairston was entitled to terminate the lease. The judge further found there had been no waiver of Dr. Hairston's right to terminate the lease for failure to pay the rent when due.

Carolina Wholesale contends the circuit judge erred in failing to consider its equitable defenses and in finding Dr. Hairston had not waived the right to terminate the lease.

I.

First, Carolina Wholesale contends the circuit judge should have exercised his equitable jurisdiction to prevent a forfeiture of its rights under the lease. Carolina Wholesale argues it would be inequitable to terminate a lease when the tenant's failure to pay the rent when due results from "good faith inadvertence."

If we were to accept Carolina Wholesale's reasoning, tenants could be evicted only if their failure to pay rent were willful. Such a rule is contrary to the established law of this State. Section 27-37-10, Code of Laws of South Carolina, 1976, authorizes ejectment of a tenant for failure to pay the rent when due. In addition, our courts have frequently upheld the eviction of tenants who did not pay their rent on time. See, e.g., Vacation Time of Hilton Head Island, Inc. v. Kiwi Corp., 280 S.C. 232, 312 S.E.2d 20 (Ct.App.1984); Wright v. Player, 233 S.C. 223, 104 S.E.2d 289 (1958); Bowers v. Lide, 191 S.C. 505, 5 S.E.2d 283 (1939); Trakas v. Mitchell, 111 S.C. 160, 97 S.E. 245 (1918).

We agree with the circuit judge that the...