Surety Realty Corp. v. Asmer, 18604

• Decision Date: 13 February 1967
• Docket Number: No. 18604,18604
• Court: South Carolina Supreme Court
• Parties: SURETY REALTY CORPORATION, Respondent, v. Albert ASMER, Appellant.

Page 125

153 S.E.2d 125

249 S.C. 114

SURETY REALTY CORPORATION, Respondent, v. Albert ASMER, Appellant.

No. 18604.

Supreme Court of South Carolina.

Feb. 13, 1967.

McElveen & McElveen, Townsend & Townsend, Columbia, for appellant.

Robinson, McFadden & Moore, Columbia, for respondent.

MOSS, Chief Justice.

Surety Life Insurance Company and Albert Asmer, the appellant herein, on September 30, 1961, entered into a lease whereby appellant leased a storeroom in the Richland Mall, a shopping center located in Richland County, for a period of five years beginning September 30, 1961, at an agreed rental of Three Hundred Fifty ($350.00) Dollars per month, payable in advance on the first day of each month. Thereafter, Surety Life Insurance Company assigned the rent to be paid by the appellant to Surety Realty Corporation, the respondent herein.

The appellant entered into possession of the rented premises and operated a retail liquor store therein for a period of six to eight months and, beginning with the month of February, 1962, ceased to pay the monthly rental provided in the lease. In May, 1962, the appellant removed his stock of goods from the premises, without notice to the respondent. Thereafter, on December 21, 1962, the appellant surrendered the keys to the storeroom to the respondent so that the respondent might attempt to rent the premises for the account of the appellant.

The record shows that the respondent has brought four suits for installments of rent due under the written lease. We are not here concerned with the first two actions. The third action was for rent alleged to be due for the period December, 1962, through August, 1963. The answer of the appellant to the third action set up two defenses with which we are not here concerned. By agreement, this third action was referred to the Master for Richland County to take the testimony and to report his findings of fact and conclusions of law. At the reference the appellant was permitted to amend his answer, setting up as a defense that the landlord-tenant relationship had been terminated according to the provisions of Sections 41--65 and 41--66 of the 1962 Code, leaving the respondent a cause of action for damages which had been exhausted by the prior actions.

The Master of Richland County convened a reference on November 17, 1964, and took the testimony offered by the parties. Thereafter, he filed his report which was confirmed by the circuit court, in which he held that the appellant surrendered the keys to the rented premises in order that the respondent might attempt to rent the said premises for the account of the appellant. He further found that upon receiving the keys to the premises, the respondent secured the services of a reputable real estate agent in an effort to obtain a tenant for the premises while acting in behalf of the appellant. He further held that the lease agreement was not terminated under the provisions of Sections 41--65 and 41--66 of the Code. The Master, having concluded that the lease agreement was in full force and effect through August 1963, held that the respondent was entitled to recover from the appellant the rent due under said lease for the period December, 1962, through August, 1963. There was no appeal from the order of the circuit court confirming the Master's report.

The fourth action was for rent alleged to be due for the period September, 1963, through June, 1964. The appellant filed an answer and, as a third defense, alleged:

'(2) Alleges that on or about December, 1962, this defendant surrendered possession of the demised premises to the plaintiff and returned to the plaintiff through its agents and servants acting within the scope of their authority the keys to the demised premises.

'(3) Alleges that sometimes prior to September, 1963, the plaintiff acting by and through his agents and servants who were then and there acting within the scope of their authority, reentered the demised premises and resumed possession thereof for the plaintiff's own use and purposes, and thereafter treated said demised premises as though the tenancy had expired.

'(4) Upon information and belief alleges that such conduct on the part of plaintiff, by and through its agents and servants acting within the scope of their authority, amounts to an acceptance of said surrender of the demised premises as a consequence whereof defendant is not liable for any rent accruing thereafter.'

The respondent moved to strike paragraphs 3 and 4 of the third defense on the ground that such defenses had been adjudicated against the appellant in an action between the identical parties involving the same subject matter and such is now sham and irrelevant or frivolous. This motion was heard by The Honorable James Hugh McFaddin, Presiding Judge, and theereafter he issued an order granting the motion of the respondent to strike the defenses in question and ordered judgment against the appellant for the amount prayed for in the complaint. It is from this order that the appellant prosecutes this appeal.

It is the position of the appellant that the presiding judge erroneously applied the doctrine of Res judicata in striking paragraphs three and four of the third defense of his answer. He asserts that the third cause of action is not identical to the fourth cause of action and the judgment in the third cause of action...