Laurens Telephone Co. v. Enterprise Bank
| Decision Date | 15 November 1911 |
| Citation | 72 S.E. 878,90 S.C. 50 |
| Parties | LAURENS TELEPHONE CO. v. ENTERPRISE BANK et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Laurens County; C. C Featherstone, Special Judge.
"To be officially reported."
Action by the Laurens Telephone Company against the Enterprise Bank and others. From a judgment for defendants, plaintiff appeals. Affirmed.
John Gary Evans, Cannon & Blackwell, and Richey & Richey, for appellant. Dial & Todd and Nicholls & Nicholls, for respondents.
On May 3, 1907, the Enterprise Bank purchased from E. W. Martin and Mrs. Essie Martin, his wife, a corner lot in the city of Laurens, on which was situated a two-story frame building. The Laurens Telephone Company, plaintiff in this action occupied two rooms in the second floor of this building as a telephone exchange. Shortly after the purchase Mr. Dial, the president of the bank, notified Mr. Richey, the manager of the telephone company, that the bank intended to erect a new banking house on the lot, that the building then standing would soon be torn down, and that the telephone company would be required to move its offices. Plaintiff, however continued to occupy the rooms until the morning of August 6, 1907, when E. L. Hertzog, a contractor, acting under the written authority of Mr. Dial and E. W. Martin, entered upon the premises with a force of hands, and began to tear off the roof of the building. Thereupon the plaintiff moved its property out. This action is brought by the telephone company to recover of the defendants actual and punitive damages for the alleged unlawful, willful, and malicious ejection on the morning of August 6th. The plaintiff alleges that it was a tenant of the premises from year to year, that the term under which it was then holding possession did not expire until January 1, 1908, and that the action of the defendants in forcibly ejecting its operators and agents was wrongful and malicious. The defendants in their answer allege that plaintiff was a tenant from month to month, and that it had received ample notice to vacate from both defendants Martin and Dial, but refused to do so. They further deny that the ejection was malicious, and allege that the telephone company by its board of directors had expressly waived any right it may have had to occupy the premises longer. Plaintiff appeals from a judgment in favor of defendants, assigning error in the admission of testimony, in the charge of the circuit judge, and the refusal of the motion for a new trial.
The undisputed facts bearing on the character of the plaintiff's possession are these: The upper floor of the building was leased by the telephone company on January 1, 1901, for a term of five years, from J. M. Robertson, who then owned the property. Upon his death in 1904 the building passed to Reuben Robertson, his son, who died in April, 1906, leaving all his estate to his two granddaughters, Mrs. Martin and Mrs. Harris. The latter afterwards transferred her interest to E. W. Martin, who, with his wife, conveyed to the defendant bank. During the continuance of the lease plaintiff paid its monthly rent first to J. M. Robertson and then to Reuben Robertson. At the expiration of the lease on January 1, 1906, there was no written contract of renewal, but plaintiff paid the same monthly rent to Reuben Robertson, and after his death to E. W. Martin as the agent for his wife and her sister. Martin testified that he and Mr. Richey could not agree on the rent for 1907; that he told Mr. Richey that he had plans to sell or improve the property; that for the year 1907 he could rent the property only by the month; that he told the defendant bank when he sold to it in May, 1907, that the telephone company was a tenant from month to month; that on May 5, 1907, he notified Mr. Richey of his sale to the bank and of the necessity of surrender of possession, so that the building could be removed to make place for the new bank building; and that at Mr. Richey's request he allowed him until June 15th to vacate. There was other testimony on behalf of the defendants tending to show that the tenancy of 1907 was from month to month, and that after June 15, 1907, it became a tenancy at will under an arrangement that the plaintiff should not be required to vacate until the contractor for the new bank building was ready to commence work. There was also testimony that the board of directors of the plaintiff company had passed a resolution not to claim the property for the year, and to vacate it as soon as other property could be obtained, and that the new location for the telephone exchange had been rented from July 1, 1907.
On behalf of the plaintiff, the testimony of Mr. Richey, the manager, was that he had not agreed to hold as tenant from month to month, and that he claimed under the law and his contract with the owners to have a right to the property for the entire year 1907; that he did not agree to vacate on June 15th, or on any other definite date; that he had waived the plaintiff's right to hold until January, 1908, only to the extent that he agreed to vacate when he had installed a new switchboard in the new location of the telephone exchange; that he had not been able to get the new location ready and install the new switchboard when the defendants began to take the roof away against his protest and his claim of right to hold the property.
The evidence is very voluminous, but the above statement is sufficient to indicate that the issue of both fact and law was sharply made as to the nature of the plaintiff's tenancy. We take up the grounds of appeal in the order in which they were argued by counsel for plaintiff.
1. The plaintiff proved beyond dispute that it had suffered actual loss of several hundred dollars from the sudden interruption of its business by having to remove its exchange without preparation. If this necessity was forced upon it by any wrongful action of the defendants, then damages would have followed as a matter of course. But the jury on this issue found in favor of the defendants, and it would not therefore have affected the result to allow the plaintiff to introduce evidence that its business at this particular time would have been unusually large because a strike by the employés of the telegraph company at Laurens would have made the public more dependent on the telephone company for quick communication. The exception, therefore, alleging error in the exclusion of such evidence, is of no consequence, unless there was error on other points requiring a new trial.
2. The evidence to the effect that the management of the bank and the telephone company were on amicable terms, that the bank had allowed the telephone company to overdraw its accounts, that Mr. Dial the president of the bank had been informed by Martin from whom the bank purchased that the plaintiff was renting by the month, that Mr. Dial had no ill will towards the plaintiff, that he took the advice of counsel, and acted thereon in the belief that he was within his legal rights, was all competent as tending to disprove the charge that the defendants acted willfully and maliciously in taking the roof off the building, and thus forcing the plaintiff to vacate.
3. Mr Richey being the representative of the company through whom its contracts were made, the testimony of the witness Brooks that he had admitted that...
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