Warncke v. Tarbutton

• Decision Date: 17 December 1969
• Docket Number: No. 14822,14822
• Parties: Mrs. R. WARNCKE, Appellant, v. Virginia D. TARBUTTON, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 363

449 S.W.2d 363

Mrs. R. WARNCKE, Appellant, v. Virginia D. TARBUTTON, Appellee.

No. 14822.

Court of Civil Appeals of Texas.

San Antonio.

Dec. 17, 1969.

Rehearing Denied Jan. 7, 1970.

James R. Warncke, San Antonio, for appellant.

Dodson, Duke & Branch, San Antonio, for appellee.

BARROW, Chief Justice.

Appellant has duly perfected her appeal from a take-nothing judgment entered after a non-jury trial in her suit to determine the liabilities and obligations of appellee under a lease contract, and to recover all sums owed thereunder.

On March 1, 1968, a written lease agreement was entered into by appellant as lessor, with appellee and her nephew, Roy Dugger, as lessees, whereby the premises known as 427 N. St. Mary's Street in the City of San Antonio were leased for a term of three years for the sum of $9,000.00, payable at the rate of $250.00 on the 15th of each month. The first and last months rental were paid in advance. The building was to be occupied by Dugger for operation of a retail business of some type. The payments through May 15th were made by appellee. Sometime in June, 1968, Dugger became ill and the June-September payments were made by Maury Maverick, Jr., Esq., who advised appellant's son and agent, James R. Warncke, Esq., that he was representing Dugger. The payment due October 15, 1968, was not paid and Mr. Maverick advised Mr. Warncke at that time that Dugger was not going to pay any more rent and, furthermore, that the 'hippies' who then were in possession of the premises were not the agents of Dugger. Appellee's attorney was subsequently contacted by Mr. Warncke, and said attorney advised Warncke that appellee had no interest in the premises and repudiated any liability on the lease agreement. Nothing further transpired on this matter until November 8, 1968. At that time Mr. Warncke was advised that the police had raided the place and arrested the hippies. Warncke went to the premises and found the glass door broken open and the lock on the door frame drilled out. Mr. Warncke boarded up the door in order to secure the empty premises.

This suit was filed on November 26, 1968, and was tried on April 29, 1969. In the interim the premises were not rented although a 'For Rent' sign was placed on the premises by Mr. Warncke. Appellant owned two other pieces of property adjoining this property, and for several years had experienced difficulty in renting each of the three properties because of the neighborhood. Mr. Warncke testified that the rental value of the premises from October 15, 1968, to the end of the term would not exceed $2,500.00. To the contrary, a real estate agent called by appellee testified that the rental value of the property for the balance of the lease term was $250.00 per month. This valuation was confirmed, in part at least, by Mr. Warncke's testimony that he was asking $250.00 per month rent for this and each of the two adjoining properties.

The trial court found that appellant took physical possession of the premises on November 8, 1968, and has had sole possession since that time. Further, that appellant, in her petition, alleged anticipatory breach and sued for damages for such breach. The court also found that the reasonable rental value of the premises during the unexpired term of said lease was $250.00 per month. The court concluded that appellant had forfeited and terminated the lease in resuming possession and control of the premises on November 8, 1969. Furthermore, since appellant brought and tried her suit to recover damages for an anticipatory breach she was not entitled to recover any rentals. Since the reasonable rental value of the lease equaled the agreed rental under the lease for the unexpired term, appellant was not entitled to recover any sum as damages.

The lease agreement was on a printed form with the addition of a typed paragraph as follows: '12th. If Lessee shall fail for ten (10) days after rent becomes due to pay same, or shall violate or neglect any provision or instruction of this lease without the written consent of the Lessor, the Lessor May forfeit this lease and shall thereupon be entitled to enter upon and take possession of the premises.' (Emphasis ours.) Here lessees not only failed to pay the rent on October 15th, but also expressly stated their intention to repudiate the lease. Appellant therefore had the right to exercise her option to terminate the lease. The basic question presented by this appeal is whether there is evidence to support the trial court's finding that appellant exercised such option to terminate the lease and sue for breach thereof.

Upon repudiation of the lease agreement by lessees, appellant had several alternative remedies open to her. She could accept the breach by appellee, retake possession of the property and sue for damages. In this event the measure of damages is the difference between the present value of the rentals contracted for in the lease and the reasonable cash market value of the lease for its unexpired term. Rohrt v. Kelley Mfg. Co., 162 Tex. 534, 349 S.W.2d 95 (1961); White v. Watkins, 385 S.W.2d 267 (Tex.Civ.App.--Waco 1...