This action was commenced on May 18, 1927, by the service of a summons, complaint, affidavit to obtain attachment, and warrant of attachment upon Harry Rittoff and Herbert Wile. On the same date the attachment was levied. On May 20, 1927, an amended summons, amended complaint, amended affidavit to obtain attachment, and a new warrant of attachment were served on the same persons and a second attachment was levied. On May 23, 1927, on the plaintiff's motion the resident Judge passed an order vacating the two attachments previously levied without prejudice to the plaintiff's rights to take such other steps in the assertion of his rights as he may deem proper. On that date this order of Judge Sease, with the amended complaint, a second amended affidavit to obtain attachment, and a third warrant of attachment were served on the same two persons, and a third attachment was levied. On May . . . . , 1927, the amended summons, amended complaint, the third affidavit to obtain attachment, and the third warrant of attachment were served personally on Herman Wile as an individual and as an officer of Joe Fisher, Inc. Since some of the questions presented by the appeal involve the Sheriff's returns, all three are hereinafter set out. B. Gunzberg has never been served and has never appeared. *Page 124
Upon notice supported by the answer of the served defendants and their demurrer and affidavits, these defendants moved to vacate the attachment on June 4, 1927. On June 24, Judge Sease filed his order refusing to vacate the attachment, expressly declining to pass upon the demurrer.
The appellants served notice of intention to appeal from the order refusing to vacate, and later served notice of a motion for an order sustaining their demurrer. The demurrer was heard by Judge Dennis at the October, 1927, term, and on November 21st he filed a formal order overruling it. The appellants in due time served notice of intention to appeal from that order, and this appeal is from both orders — that of Judge Sease refusing to vacate the attachment, and that of Judge Dennis overruling the demurrer.
On August 23, 1927, the defendant, Joe Fisher, Inc., replevied the attached chattels by filing a $10,000 surety bond, and the chattels were packed and shipped out of the State.
The questions involved as stated by the appellants are:
"1. Was the attachment rightly sustained against the motion to vacate and the demurrer to the complaint where it appeared:
"(a) The complaint and affidavit alleged only that (1) one defendant is a domestic corporation and the others non-residents: (2) plaintiff leased a storehouse for five years to Cannon Fetzer Co. at $425 a month, and 2 1/2 years are unexpired; (3) the defendants are continuing business in it as successors of Cannon Fetzer Co., and (4) the defendants are packing up their stock of goods to remove them from the State `without making any satisfactory arrangements with the plaintiff in regard to the payment of his said rental and with the purpose and intent to defraud him of his said rent and improvements, all to his damage in the sum of $5,000,' there being no rent past due, and no breach of any contractual provision assigned or claimed.
"(b) The attachment was sued out by the plaintiff only at the urgency of, and on condition of being saved harmless *Page 125 by, three persons who had guaranteed to him the payment of the rent by Cannon Fetzer Co., when the lease was originally made, and who, in writing employed the attorneys to attach in the name of R. Skalowski, thereby seeking to use the writ of attachment to substitute the defendants for themselves in the liability they voluntarily assumed.
"(c) The Sheriff, instead of levying an attachment, evicted defendants, took the keys, and excluded them from possession of the premises.
"2. Does a complaint, invoking a written lease, but alleging nothing due under it, no breach of any conditional, and no requirement of maintaining a stock of goods, and claiming damages only on the ground that the defendants `have made no satisfactory arrangement for the payment of the rent' hereafter coming due, state a cause of action?"
As to the appeal from Judge Sease's order refusing to vacate attachment:
Before Judge Dennis heard the demurrer, the defendants gave bond for the goods attached and shipped the goods out of the State. In the case of Du Rant v. Brown Motor Co.,147 S.C. 88, 144 S.E., 705, we find the able and careful opinion of Mr. Justice Cothran, wherein he quotes various cases from this and other States, and which conclusively decides this appeal from Judge Sease's order.
When the defendants gave bond, they waived the right to set aside the attachment under Section 474 of the Code Civ. Proc., 1922. These exceptions should be overruled.
As to the exceptions to Judge Dennis' order overruling the demurrer:
The respondent is the real party in interest; and, irrespective of his agreement with the guarantors it was and is his duty to bring this action to lessen and minimize his own damages, so that there may not be any question of the measure of liability of the guarantors, if he has to fall back on them. *Page 126
Where one who has contracted in writing to rent premises is tendered such premises at the proper time, refuses to take the same, and declines to perform his contract, a cause of action immediately arises in favor of the lessor, against the lessee, the prospective tenant, for the full amount of damages, present and prospective, which were the necessary and direct violation of the contract. Cleveland v. Bryant, 16 S.C. 634;James v. Kibler, 94 Va., 165, 26 S.E., 417; 35 C.J., 1193.
I do not think that the attachment by the Sheriff amounted to an eviction and termination of the lease.
"Attachment and levy upon tenant's personal property so as to discontinue his business, made without objection by tenant, acquiesced in by landlord's agent, and under which goods were surrendered to subsequently appointed receiver in bankruptcy, held not to amount to eviction, so as to defeat claim for rent." (Syllabus) In Re., Bradley (D.C.), 225 F., 307.
Whether there has been an eviction in any case depends on the intention on the part of the landlord, as shown by the evidence. McCormick v. Potter-Herrick Wall Paper Mills,147 Ill. App., 487.
The levying of a distress warrant and the locking of the door of the rented premises is not such an interference with the possession of the tenant by the landlord as would constitute an eviction which would defeat a recovery of rent. Id.
The levy of a landlord's attachment on property subject to a lien for rent, accompanied by taking possession of the leased premises by the officer to hold the attached property, is not an eviction of the tenant. Wolf v. Ranck,161 Iowa, 1, 141 N.W., 442.
To constitute an eviction of a tenant by his landlord, there must be, not a mere trespass, but something of a permanent character, intending to deprive, and which does deprive, the tenant of the use of the demised premises, or some part thereof. (Syllabus) Meeker v. Spalsbury, 66 N.J. Law, 60,48 A., 1026. *Page 127
It is true that this Court, in the recent case of Simon v.Kirkpatrick, 141 S.C. 251, 139 S.E., 614, 54 A.L.R., 1348, says, "A lease * * * may be terminated by eviction and re-entry, etc.," yet the facts of this case are different from those in the Kirkpatrick case.
The defense that a corporation cannot legally enter into a contract of copartnership, where a complaint alleges damages for the breach of the contract assigned to said corporation and its codefendants, should be raised by answer and not by demurrer.
"Ultra Vires. — If the defendant wishes to interpose the defense of ultra vires in an action by a corporation against him, he should specially plead it. And, in an action against a corporation, the plaintiff need not set out in his complaint or declaration the capacity of the corporation to make the contract sued on. Where the defense of ultra vires is allowable to a corporation, the corporation must specially plead it." 5 Encyclopedia of Pleading and Practice, page 95.
"A corporation which had formed a partnership with an individual contracted to sell to defendant goods purchased in part with corporate funds, and on defendant's refusal to receive the goods the corporation, in its own right, and as assignee of its partner, sued for breach of contract. Held, that, though the corporation's contract of partnership was ultravires, this defense could not be raised by defendant, who was charged with knowledge that plaintiff could not enter into a legal partnership, and will be held to have dealt with plaintiff and its partner as joint owners of the property." HuguenotMills v. Geo. F. Jempson Co., 68 S.C. 363, 47 S.E., 687, 102 Am. St. Rep., 673.
In rendering the opinion of the Court in the HuguenotMills case, Justice Woods has this to say:
"At the trial the defendants demurred orally on `the ground that it [the complaint] does not state facts sufficient to constitute a cause of action, in that the plaintiff sues as assignee of the Greenville Commission Company, an alleged *Page 128 partnership existing between the Huguenot Mills, a corporation chartered under the laws of the State of South Carolina, and one Herbert Rountree, and under the charter of the Huguenot Mills, and under the law a partnership cannot exist between the said Huguenot Mills and the said Herbert Rountree, and the alleged contract was therefore ultra vires."
"In the first exception, the defendants allege that the Circuit Judge erred in overruling the demurrer. The general proposition is well established that a corporation cannot enter into a valid partnership agreement. This implies that such an agreement, made by the corporation, even with the assent of all the stockholders, may be annulled at the instance of the State. It implies that an agreement made by the officers may be annulled or disregarded by the stockholders, and that the officers who embark the corporate funds in such an enterprise would be liable for losses resulting to the corporation as for a breach of trust. It implies that the stockholders could require the officers to take a conveyance from the corporation of its interest in property acquired by an attempted partnership of this kind, and restore the funds used in its purchase. But it does not imply that the corporation does not acquire, as against the outside world, part ownership of property bought in part with corporate funds in the progress of an attempted partnership business. An incident of ownership is the power of sale, and the power to sell implies the power to hold those who agree to buy to perform their agreement or pay damages for its breach. To illustrate, it cannot be doubted, if in this instance the stockholders had brought an action to have the business closed up as ultra vires, the Court would have ordered the assets sold, and the contracts for purchases from the concern enforced by suit for the benefit of the corporation. To such suits it would have been idle for those who had purchased or contracted to purchase to deny the corporate right to own and sell the goods. If this were a suit in a partnership name, the defendants' demurrer *Page 129 would stand on a very different foundation, for the question would then be whether the joint owners could recover when they had sold as an alleged partnership. Even then we think the defendants could not deny the validity of their obligation on that ground. 5 Thompson on Corporations, § 5838;Connolly v. Union Pipe Co., 184 U.S. 544, 22 S.Ct., 431,46 L.Ed., 679; Bank v. Hammond, 1 Rich. Law, 288; SandwichMfg. Co. v. Donahue [29 Minn., 111], 12 N.W., 354. In the case really presented the corporation sues alone in its own right and as assignee of Rountree. The defendants are charged with knowledge that the plaintiff could not enter into a legal partnership (Pearce v. R.R. Co., 21 How., 441,16 L.Ed., 184), and that in the contract to purchase they were dealing with the plaintiff and Rountree as joint owners of the property, who as such had a right to sell it. For this reason they cannot now dispute the validity of the contract of purchase, or the liabilities which fell upon them when they repudiated it. The demurrer was therefore properly overruled.
"Substantially the same question was made by a motion for non-suit and in requests to charge. It follows that the first exception as to the * * * refusal to grant a non-suit, and the first, second, fourth, and fifth exceptions to the charge cannot be sustained."
All exceptions should be overruled, and judgment affirmed.