456 F.2d 347 (5th Cir. 1972), 71-2038, Farmers & Bankers Life Ins. Co. v. St. Regis Paper Co.

Docket Nº:71-2038.
Citation:456 F.2d 347
Party Name:FARMERS AND BANKERS LIFE INSURANCE COMPANY, Plaintiff-Appellee, v. ST. REGIS PAPER COMPANY, Defendant-Appellant, v. F & H WAREHOUSE COMPANY, Third Party Defendant-Appellee.
Case Date:February 01, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 347

456 F.2d 347 (5th Cir. 1972)

FARMERS AND BANKERS LIFE INSURANCE COMPANY, Plaintiff-Appellee,

v.

ST. REGIS PAPER COMPANY, Defendant-Appellant,

v.

F & H WAREHOUSE COMPANY, Third Party Defendant-Appellee.

No. 71-2038.

United States Court of Appeals, Fifth Circuit.

February 1, 1972

Page 348

John C. Snodgrass, Travis C. Broesche, Houston, Tex., Alton R. Griffin, Lubbock, Tex., for defendant-appellant; Vinson, Elkins, Searls & Smith, Houston, Tex., of counsel.

Don Graf, Hugh Anderson, Anderson, Edwards & Warnick, Nelson, McCleskey, Harriger & Brazill, Lubbock, Tex., for plaintiff-appellee.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

This case involves the extent of St. Regis Paper Company's (St. Regis) liability growing out of the repudiation of its obligations under a lease contract in light of the destruction of the lease premises after repudiation but before the end of the lease term. 1

Page 349

On February 27, 1959, F & H Warehouse Company (Warehouse Company) agreed to lease a warehouse in Lubbock, Texas to Lubbock Bag Company for a period of twenty years from April 1, 1959 to March 31, 1979. For the first ten years of the lease term the stipulated monthly rent was to be $1,000.00, increasing to $1,500.00 during the second ten years. Lessee was to pay all taxes on the property and maintain the warehouse.

As a result of various corporate mergers, St. Regis became obligated as lessee in December, 1959. In 1968, Warehouse Company assigned the lease contract to Farmers & Bankers Life Insurance Company (F & B) as security for a loan. St. Regis continued to occupy the warehouse and pay rent until July, 1968, when it abandoned the premises on the basis of an alleged constructive eviction.

On December 6, 1968, F & B filed suit against St. Regis in state court to collect rents accrued and unpaid from July, 1968 through December, 1968. St. Regis answered and filed a third-party action against Warehouse Company, seeking to avoid double liability. Warehouse Company responded by claiming damages for anticipatory breach.

In March, 1970 F & B filed its First Amended Petition in the state court, amending its plea for relief to include rents accruing since the date of its initial pleading. The damages sought thus exceeded $10,000.00, and St. Regis thereupon removed the case to federal court on the basis of diversity of citizenship.

On May 11, 1970, a tornado struck Lubbock, Texas, and the warehouse in question was completely destroyed. On February 19, 1971, F & B amended its pleading once more to include rents accrued through May, 1970 and for the first time incorporated an alternate measure of damages based on a theory of anticipatory breach.

The case was tried in March, 1971. The jury answered two special damage issues, both based on the theory of anticipatory breach. On March 31, 1970, the district court entered judgment against St. Regis for $95,000.00 in part, based on the jury's determination of the value of the lease to the lessor from July 1, 1968 to March 31, 1979, less the fair rental value for the same period. We affirm.

St. Regis first contends that there has been no anticipatory breach of the lease. This argument is based on the contention that the lease contract remained in force on May 11, 1970 and was terminated by the destruction of the lease premises. It is undisputed that St. Regis repudiated the lease prior to May 11, 1970. St. Regis, however, argues that F & B failed to accept the repudiation and chose instead to keep the lease in effect until after its termination.

Under applicable Texas law, an anticipatory breach requires both a repudiation and an acceptance by the innocent party. Humphrey v. Placid Oil Company, E.D.Tex.1956, 142 F.Supp. 246, aff'd, 5th Cir. 1957, 244 F.2d 184; Warncke v. Tarbutton, 449 S.W.2d 363 (Tex.Civ.App.-San Antonio 1969, writ ref'd n.r.e.); Blakeway v. General Electric Credit Corporation, 429 S.W.2d 925 (Tex.Civ.App.-Austin 1968, writ ref'd n.r.e.); Continental Casualty Company v. Boerger, 389 S.W.2d 566 (Tex.Civ.App-Waco 1965, writ dism'd). Until acceptance by the lessor, the lease is in effect for all purposes, and intervening events may relieve the breaching party of his obligations under the contract despite his prior repudiation. Greenwall Theatrical Circuit Company v. Markowitz, 97 Tex. 479, 79 S.W. 1069 (1904);

Page 350

Pollack v. Pollack, 39 S.W.2d 853 (Tex.Com.App.1931); Vise v. Foster, 247 S.W.2d 274 (Tex.Civ.App.-Waco 1952, writ ref'd n.r.e.).

The resolution of the issue involved in the instant case must, therefore, turn on whether there was an acceptance of St. Regis' repudiation prior to a termination of the lease. 2

It is clear that F & B did not accept St. Regis' repudiation prior to its Second Amended Pleading of February 19, 1971. Until that time, F & B had maintained a consistent course of conduct evidencing a desire and intent to keep the lease in full force and effect and to bring suit only for rental payments as they accrued. See Perkins v. Harper, 330 S.W.2d 241 (Tex.Civ.App.-San Antonio 1959, writ ref'd n.r.e.); Kingsbery v. Phillips Petroleum Company, 315 S.W.2d 561 (Tex.Civ.App.-Austin 1958, writ ref'd n.r.e.); Marathon Oil Company v. Rone, 83 S.W.2d 1028 (Tex.Civ.App.-Ft. Worth 1935, writ ref'd); Leonard v. Kendall, 190 S.W. 786 (Tex.Civ.App.-Dallas 1916, writ ref'd). F & B argues, however, that Warehouse Company's claim for anticipatory breach in December, 1968, in answer to St. Regis' third-party action, operated as an acceptance of St. Regis' repudiation.

The assignment contract between Warehouse Company and F & B did not purport to transfer to F & B all right, title and interest in the lease agreement. It instead provided:

This assignment shall constitute a direction to and full authority to the lessee to pay upon demand by assignee all such rents and other benefits to assignee or to whomever assignee shall empower. Further, the owner, hereby authorizes assignee, at its option, at any time after default shall occur under the terms and provisions of this assignment or of the note, mortgage or...

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