Mallard v. Duke

• Court: South Carolina Supreme Court
• Writing for the Court: MARION, J.
• Citation: Mallard v. Duke, 131 S.C. 175, 126 S.E. 525 (S.C. 1925)
• Decision Date: 12 February 1925
• Docket Number: 11682.
• Parties: MALLARD v. DUKE ET AL.

126 S.E. 525

131 S.C. 175

MALLARD v. DUKE ET AL.

No. 11682.

Supreme Court of South Carolina

February 12, 1925

Appeal from Greenville County Court; Martin F. Ansel, Judge.

Action by Mrs. Charlotte Smith Mallard against Mrs. H. C. Duke and another. Judgment for plaintiff, and defendants appeal. Affirmed.

The court's charge follows:

We have taken up considerable time and there is a great deal of testimony introduced into the case that is not necessary for you to consider at all, as I have ruled it out. We are now on the civil side of the court and when the plaintiff brings a case into court he must prove his case by the preponderance of the evidence, the greater weight of the evidence, not necessarily the greater number of witnesses. You put the evidence of the plaintiff in one side of an imaginary scale and the evidence of the defendant in the other, and which side goes down preponderates. It is the testimony which brings conviction to your mind from the testimony heard on the stand from the witnesses. The complaint in the case is as follows: (Reads.) Then the defendants file what we know as an answer, which I will read. (Reads.) There is a counterclaim and a denial to that.

I will state to you according to my opinion in reference to the motion, so far as fraud in execution of the papers is out of the case. The question for you is whether or not at the time the property was surrendered whether the building was so injured as to render it untenantable? You are to get that from what you have heard from the witnesses. Were the premises untenantable, and did the defendants know of it, and could they have ascertained it; if so, did they waive their right to insist upon that? It is in the contract that they would have the right to surrender if such were the case. The question of waiver is one for you. The judge cannot tell you whether it is or not, but I can give you the definition of waiver, which is the voluntary relinquishment of the right of a party, the passing over or putting aside, whether in express terms or acts inconsistent with their rights. That is the definition of waiver, and you are to apply the testimony to that definition as I have given it to you. So the first question for you to pass on is, Was the building untenantable at the time when the keys were surrendered February 1, 1922? and you are to get that information from the evidence in the case. The law does not allow me to state any of the evidence or give you my opinion. I am to state the law to you, and you are to take the law as I give it to you and apply it to the facts you have heard from the witnesses. You know what untenantable is, not fit to be used for the purpose it is meant to be used, and for which it is rented. If you conclude it was tenantable at that time, you need go no further; if it was, the plaintiff is entitled to a verdict in her favor for the amount of rent, but not if you come to the conclusion it was not, and this is set up by the defendants and must be proved by them by the preponderance of the evidence. You see the onus shifts at that time and they must prove it was untenantable by the preponderance of the evidence. If they went in and remained there, then the question for you to say is whether it was untenantable at the time they gave it up. You pass upon the question as to whether it was untenantable or not; if it was, then the question of waiver comes in.

I could pass upon the question of promise, but should I charge you on that it would be from the case in 117 S.C. Livingston v Reid & Hart, p. 391, 109 S.E. 106. I submit the case to you upon those two questions alone. I have been requested to charge you as follows, and it is made my duty under the law to pass upon them. 1, 2, and 3 are refused.

4. If you find that it was not in a completed condition within the meaning of the parties when delivered to the defendants, the question then arises, Did the defendants waive the defects by going into possession under the lease? If they knew of the condition of which they now complain when they went into possession or found it out afterwards and remained in the building knowing the condition, they have waived it. But if it was a hidden defect and such a defect that reasonable inspection would not have disclosed it, then they did not waive it by going into possession.

I charge you that it is about the question of whether they waived by going in in the first instance.

5. It is entirely possible for a situation to arise where a tenant would know there was something wrong and yet not know what it was or what caused it. "Waiver" is the intentional relinquishment of a known right and one must be familiar with the facts before he can be said to have waived a right upon those facts.

I have given you the definition of waiver.

6 is refused.

7. Where a landlord puts property into the hands of an agent for the purpose of renting it, collecting the rents, and in the course of dealings between the parties, it is the agent and not the landlord who deals with the tenant. Notice to the agent is just as binding on the landlord as notice given direct to the landlord. So that if you find that the plaintiff intrusted this property to the management of an agent, any complaint made by the tenant to such agent would have the same effect in law as if made direct to the landlord.

That is good law and you are so charged. Unless they had waived that condition, as already defined to you.

8. Similarly, it is not necessary that the tenant make his or her complaint in person. The tenant may make the complaint through any one he desires. The vital thing is that the tenant, through some channel or other, brings his complaint to the notice of the landlord or the landlord's authorized agent. Charge.

9. Is refused.

10. It is specified in the lease that if the premises shall be "so injured as to render them untenantable" the lease should be at an end. Consequently, if you find that this building became untenantable, and by reason thereof defendants and their tenants moved out and gave up the keys to plaintiff, I charge you that from that time the lease would be at an end, and plaintiff could not recover for any rent thereafter falling due.

Charged, unless they had waived that condition as I have already defined waiver to you.

11, 12, 13, and 14 are refused.

15. The jury is charged that, as the lease provides, that if the premises became injured so as to render the building untenantable the defendants would have the right to terminate the lease. The jury is charged, therefore, that if the building became untenantable for any reason not chargeable to the negligence or default of the defendants then they would be justified in abandoning the premises unless there had been a waiver on the part of the defendants. On the question of whether the premises were untenantable, the jury may take into consideration all the facts and circumstances, including the nature of the business conducted by the defendants and the purpose for which the building was rented, if known to the landlord at the time. The facts are entirely for the jury on the question of what would render the premises untenantable.

Charged, and in connection with that you take into consideration the condition of the weather; if there was a defect, whether it was brought about by ordinary weather or for some other reason. They are all questions for you to take into consideration.

16. Before a tenant can abandon property leased by him or her on account of conditions which render the premises untenantable, complaint must first be made to the landlord or his agent, and a reasonable time allowed for the landlord to remedy the conditions, and it is a question for the jury as to what is a reasonable time under the facts and circumstances. That is correct, and I can go further than that. If the testimony shows it was untenantable at the time, it is not necessary to give notice at all under the lease. That goes further than the request to charge.

That about covers the law in the case, so you take the papers and exhibits you might want in consideration of the case. If you find for the plaintiff, you say on the back of this amended complaint, "We find for the plaintiff" the amount of rent and interest, whatever it is, and if you find for the defendant, you say, "We find for the defendant." Whatever your conclusions may be, let it be known by the verdict you render.

Mr. Haynsworth: I thought you might charge on the compromise.

Court: They are to take into consideration the condition of the building at the time the key was delivered.

Mr. Haynsworth: It is bearing on the question of waiver. If the facts show, as alleged, it was unsatisfactory, if it was known or could have been ascertained at the time of the settlement, they could have no recovery.

Court: I am not going to submit that to the jury, but only the question was it untenantable at the time. It is my construction of the contract if it became untenantable any time under the lease then the lessee had the right to terminate it. I am only construing the contract so you see, gentlemen, the importance of whether it was untenantable.

Jas. H. Price and Stephen Nettles, both of Greenville, for appellants.

Haynsworth & Haynsworth, of Greenville, for respondent.

MARION J.

"This is an action for the recovery of the rental of a brick building leased by plaintiff to defendants. The complaint alleges that on May 15, 1920, the parties entered into a written lease for a period of three years, beginning June 1 1920, or as soon thereafter as the building should be completed; that the building was completed and defendants went into possession on July 1, 1920; that they remained in possession and paid the rent up to January 31, 1922, but failed to...