Coe v. Burrell , 136 S.C. 410 ( 1926 )

August 11, 1926. The opinion of the Court was delivered by On the 28th of December, 1921, the plaintiff, J.G. Coe, issued his distress warrant and seized the property owned by Tom Burrell for past-due rent, claimed by the said J. G. Coe. On the 29th day of December, 1921, the defendants Tom Burrell and C. McDonald, as principal and surety, respectively, executed their bond which will be set out in full in the report of the case. On the executing and delivery of this bond, the property distrained was released. On January 3, 1922, the respondent commenced his action against the defendant Tom Burrell, alone, asking for judgment against the said Tom Burrell for $360 past-due rent; and thereafter on the 18th of March, 1922, the respondent commenced his action against the defendants Tom Burrell and C. McDonald on a complaint which will be set out in full in the report of the case. The first complaint is substantially the same as the first three allegations of the second complaint.

The answer in the first action was a general denial and a plea of payment in full. The answer in the second action was also a general denial and plea of payment in full, and, also, defendants set up the defense of another action pending.

The matter came on for trial before his Honor, Judge Featherstone, and a jury. Judge Featherstone allowed the plaintiff to dismiss the first case, after the following, which appears in the record:

"Motion to dismiss by Mr. Miller, upon grounds stated in writing:

"Mr. Miller: My suggestion is, that we try both cases together, waiving nothing.

"Mr. Cook: That suits me.

"(Argument pro and con.)

"The Court: I don't see why this matter should not be threshed out on its merits. If there is any reason at all why I should refuse your motion to dismiss, I am going to do it. It seems to me we have here an action by a landlord against a tenant on a contract to pay rent. Later on there is a distress warrant issued, and, in order to be relieved from that distress and get his goods back, that defendant came into Court and gave bond. Now, then this action is brought upon the bond, which it seems to me, while it may necessarily involve the same facts to a certain extent, is not an action for the rent but an action on that bond, and here we have a new party under those circumstances."

Let us first take up the objection that defendants interpose, that the second action ought to be dismissed for the reason that there was another action pending. The rule is as follows:

There must be "a former suit in the same jurisdiction between the same parties for the same cause of action and relief." Ency. of Pl. and Pr., Vol. 1, p. 750.

Tested by this rule, the second suit was different from the first; as another party was added, the second suit was upon the bond, while the first was merely for the rent, and the second complaint demanded interest while none was demanded in the first complaint. Hence the suits were between "different parties," as used in the above quotations, were not upon the same cause of action, and different relief was demanded.

The statute in question in this case is Section 5291, Code, Vol. 3, 1922, and provides:

That when goods and chattels have been distrained for rent the tenant shall "within five days after such distress and notice thereof, replevy the same by giving bond in double the amount of rent claimed, conditioned for the payment to the landlord of whatever judgment may be recovered by said landlord against the tenant in an action to be broughton said bond for the recovery thereof. * * * (Italics added.)

The condition of the bond in question was "shall pay or cause to be paid to the said J.G. Coe, as landlord, whatever judgment may be recovered by the said landlord against said tenant in an action to be brought hereon for the recovery of said rent * * *," while ordinarily, under the cases and authorities cited by appellants on page 8 and 9 of their points and authorities, an action would have to be brought first to recover the rent and then an action brought on the judgment obtained in this action.

But this rule does not apply in this case for two reasons:

First. Appellants agreed to try both actions together, and that would be a waiver of their right, if they ever had any, of insisting that an action could not be brought on thebond until a judgment was first obtained on the rent contract.

Second. Section 5291, part of which was quoted above, continues:

"* * * Said bond to be approved by the magistrate of the county in which the distress is made, if action to recover the amount of rent claimed is within the jurisdiction of a magistrate, otherwise to be approved by the clerk of Court of said county." The terms of the bond are: "Whatever judgment may be recovered by the said landlord against the tenant in an action to be brought hereon for the recovery of said rent.

Now it appears by a fair construction of the Statute and the terms of the bond that the action for the rent on thebond may be brought in the same complaint as was done in this case.

On the two grounds just given above there was no error in going ahead as the Court below did and ascertaining the amount due for rent and also on the bond.

Now, as to the question as to the applicability of the statute of frauds:

"* * * The Statute was intended to be applicable to contracts wholly executory * * * both the consideration and the promise must be executory. * * * Judge O'Neall in Gee v. Hicks, Rich. Eq. Cas., 5.

Where A. occupies and enjoys the premises of B., in an action by B. for the recovery of the rent, A. cannot set up and sustain a defense that he entered under a parol contract and that such contract is voidable by the statute of frauds. To allow such a defense, after one has reaped the fruits of a so-called illegal contract, would be shocking to the concepts of justice which are planted in the breast of the ordinary man. After one has occupied the premises of another, it is too late to say that his original entry and occupation were under a voidable contract.

These matters have been set at rest long ago by many cases among which may be mentioned the following: Hillhousev. Jennings, 60 S.C. 392; 38 S.E., 596, and Matthews v.Hipp, 66 S.C. 162; 44 S.E., 577, both of which decisions were written by that clear thinker and splendid legal reasoner, our present Chief Justice.

We dismiss all the exceptions as to the judge's charge, which will be set out in full. It was clear, fair, and fully met the issues in this case. This case was a matter for the jury, and it has been fairly submitted to them, and we see no error. There was no evidence submitted on behalf of the defendants going to show that plaintiff's contentions were not correct. It appears that substantial justice has been done — that no reasonable jury could have found any other verdict than that which was found in this case.

It is the judgment of this Court that the exceptions be dismissed, and that the judgment below be affirmed.

MESSRS. JUSTICES COTHRAN, BLEASE and STABLER and WATTS concur.

MR. CHIEF JUSTICE GARY did not participate.