Suit by D. Frederick McMullen and another, as executors of the estate of Donald C. McMullen, deceased, against George F. Klotz for a decree declaring what rents were due under a lease given by plaintiffs' testator to defendant. To review order denying plaintiffs' motion to strike certain paragraphs of the answer, the plaintiffs bring certiorari.

Petition for certiorari granted and order quashed. The petitioners, as executors of the estate of Donald C. McMullen, deceased, filed a bill of complaint seeking a decree declaring what rents were due under a lease given by their testator to the respondent. In short, certain property was leased for a period of five years from 1946 to be used as a trailer park, and it was stipulated that the lessee should pay to the lessor monthly $50 or one-third of the net receipts, whichever sum was the larger.

In answer to the bill of complaint the respondent admitted that the terms of the lease were unambiguous and provided for a "basic rental of $50.00 per month" and in addition thereto one-third of the net profits after crediting the sum of the monthly *Page 770 rental, but stated that a subsequent oral agreement had been entered into whereby the lessee was to make improvements from time to time, the cost of which was to be credited on the rental and that he would not be required to pay the lessor any money in cash until such time as the accumulated moneys due by the lessee to the lessor, computed monthly, should equal the amount of the improvements on the premises made from time to time by the lessee. It was asserted in the answer that no reports were made for a few months after the execution of the written lease because the parties "were negotiating and discussing the matter on an average of once each week and the lessor saw that the original agreement would be too burdensome * * *." To cap these allegations, it was pleaded that the lessor had "accepted" thereafter until the time of his death monthly reports made by the lessee.

We think these averments in respondent's answer constituted an attempt to vary the terms of a lease executed under seal. They were proposed as a basis for testimony that there had been a gratuitous agreement to reduce the amount of the rent despite the terms of the written agreement.

Even if taken as true, the allegation that, after an interim of several months, the periodic reports were "accepted" by the lessor does not carry the conviction that there was any consideration for the alleged new arrangement, there having been no cash accompanying the reports, and it utterly fails to establish that simply because the reports themselves were accepted, or received, by the lessor he thereby so bound himself to the proposed new agreement that he became estopped to stand upon the old one.

We are impelled to grant the petition for certiorari and quash the order denying the motion of the petitioners to strike the paragraphs of the answer setting out the matters to which we have referred, without any restriction, however, on the chancellor's granting permission to amend the parts under attack if he feels that justice dictates that the respondent be given the opportunity to amend them.

ADAMS, C.J., and TERRELL and SEBRING, JJ., concur.

CHAPMAN, BARNS, and HOBSON, JJ., dissent.

On certiorari, as on appeal, the question is: Has it been made to affirmatively appear that the Chancellor has committed harmful or grievous error?

In this instance the Chancellor (1) denied petitioner's "motion to strike" paragraphs "4, 6 and 8" of respondent's answer.

Our holding in Schupler v. Eastern Mortgage Co., 33 So.2d 586, which was based on previous decisions of this Court and which has been adhered to, was to the effect that an answer will avail a defendant only so far as in equity it should, and it is error to strike matter relevant and pertinent to the equities though it would affect equities only to extent of assessments of costs, the test being not whether the answer states a defense but whether matter is relevant or material.

The last reaffirmance of the Schupler case on this point was Westervelt v. Istokpoga Consolidated Subdrainage District, 35 So.2d 641.

One question to be ultimately decided is: What shall be the rest period for determining the rents payable to the plaintiffs from the profits? And also it is doubtful that the accounting of the defendant as contained in exhibits to his answer is in accord with the answer, but these matters are details which may properly be left to the consideration of the Chancellor and with which we need not now be concerned.

The matters contained in the paragraphs of the answer which petitioner sought to have stricken are not so irrelevant, immaterial and impertinent as to warrant the Chancellor in striking them, and the Chancellor was evidently guided by the principles enunciated in the Schupler and Westervelt cases, supra.

The petition for certiorari should be denied.

CHAPMAN and HOBSON, JJ., concur. *Page 771