Jones v. Spartanburg Herald Co. , 44 S.C. 526 ( 1895 )

The opinion of the court was delivered by

Mr. Justice Gary.

The question raised by the appeal in this case will be understood by referring to the complaint, answer, the presiding judge’s charge to the jury, and appellant’s exceptions, which will be incorporated in the report of the case.

1 The first exception complains of error on the part of the presiding judge in charging the jury that it was immaterial whether the defendant corporation bad gone out of business or not. The appellant’s attorneys do not discuss this exception in their argumént before this court. The proposition is too plain to admit of controversy, that a corporation, by simply going out of business, does not absolve itself from liability to be sued.

2 The latter part of this exception, also the latter part of exception 4, and exceptions 5, 6, and 7, complain of error on the part of the Circuit Judge in failing to charge the jury as therein set forth, although there were no requests to charge. Such exceptions will not be considered by this court. Marion v. Aiken, 39 S. C., 33.

The other exceptions raise substantially but two questions, to wit: 1st. Was there error of law on the part of the presiding ^judge in commenting on the facts of the case in his charge to the jury? 2d. Was it error on the part of the presiding judge to charge the jury that, in order to terminate a tenancy from year to year it is necessary to give three months notice of such intention immediately preceding the end of the calendar year?

3 After a careful consideration of his honor’s charge, we fail to find where he commented on the facts and invaded the province of'the jury. The exceptions raising the first question are, therefore, overruled.

4 The authorities in this State show, beyond question, that a tenancy from year to year looks to the end of the calendar year for its termination, and that, in order to terminate it at that time, it is necessary to give notice of such intention. Wilson v. Rodeman, 30 S. C., 210, and cases therein cited. His honor charged the jury that such notice must be given three months immediately preceding the end of the calendar year. At common law it was necessary to give six months notice in order to terminate a tenancy from year to year. This rule has not, however, been adopted in this and a number of other States. An impression has prevailed in our State for a long time that it is necessary to give three months notice in order to terminate a tenancy from year to year, although we have no statute providing for such notice. This impression was caused, perhaps, by the provision of the act of 1808 (set forth in section 11, on page 435 of the General Statutes of 1872), that all tenants for years, &c., who shall hold over after the legal determination of their estates, after demand made in writing for delivering possession thereof by the person having the reversion or remainder therein, and holdiug over for the space of three months after such demand, shall forfeit double the value of the use of the premises, recoverable by action. This provision was not incorporated in the General Statutes of 1882 nor in the Revised Statutes of 1893.

The case of Godard v. Railroad Co., 2 Rich., 346, decides two questions: 1st. That in order to terminate a tenancy from year to year it is neceasary to give reasonable notice of such intention. 2d. That in that case three months notice was admitted to be the customary notice in Charleston, where the case was tried, and that the difference in the habits and state of society in England and in this State well warranted the substitution of three for six months. That case differs from this in the very material fact that in Charleston, it was admitted, custom had fixed the notice in such cases, while here there was not even any testimony introduced tending to establish such custom. In the absence of a statute requiring three months notice, and in accordance with the principles announced in the case of Godard v. Railroad Co., supra, we are bound to hold that the Circuit Judge was in error in charging the jury that three months notice was necessary in order to terminate a tenancy from year to year. His honor should have charged that it was only necessary to give reasonable notice, and should have left it to the jury to say whether, in view of all the facts and circumstances of this case, reasonable notice was given. The exceptions raising this question are sustained.

It is the judgment pf this court, that the judgment of the Circuit Court be reversed, and the case remanded to the Court of Common Pleas for Spartanburg County for a new trial.