Miller v. Morris

• Decision Date: 14 October 1881
• Docket Number: Case No. 1081.
• Citation: 55 Tex. 412
• Court: Texas Supreme Court
• Parties: MILLER, BILLUPS & CO. v. MORRIS, RAGSDALE & SIMPSON.

55 Tex. 412

MILLER, BILLUPS & CO.

v.MORRIS, RAGSDALE & SIMPSON.

Case No. 1081.

Supreme Court of Texas.

Oct. 14, 1881.

APPEAL from Anderson. Tried below before the Hon. Peyton F. Edwards.

Suit was brought by the appellants against the appellees, to recover from them the alleged value of houses and machinery at Nechesville, Texas, known as the Miller, Billups & Co. gin factory and mill, situated on the town lots of the appellants, in the town of Nechesville.

Appellants averred in their petition, that, as surviving partners of Messrs. Miller, Billups & Co., they did on the 12th day of April, 1878, enter into a written contract with the appellees to lease them the property, in words and characters as follows:

“This instrument of lease, made the 12th day of April, 1878, witnesseth that R. J. L. Morris, T. S. Ragsdale and L. V. Simpson, of Nechesville, county of Anderson and state of Texas, hath rented from Miller, Billups & Co., of Nechesville, aforesaid, one-fourth capacity of their shops, situated in said town of Nechesville, one yoke of oxen, one wagon and three dwelling houses, until the 1st day of January, 1879; for which they agree to pay to the said Miller, Billups & Co. the sum of thirty-three and 33-100 dollars per month, due and payable at the expiration of each three months, at Nechesville. Also, their grist mill and cotton gin, for the use of which for the length of time before specified, they (Morris, Ragsdale & Simpson) agree to pay to Miller, Billups & Co. thirty-five per cent. of all toll corn and cotton realized from same at the expiration of above specified time. The said Morris, Ragsdale & Simpson agree to give the said Miller, Billups & Co. peaceable possession of the said shops, oxen, wagon, houses, mill and gin in as good condition as when delivered to them; that is to say, in good running order, ordinary wear and tear excepted. In testimony of which we sign, seal and deliver this instrument in the presence of W. W. Owen.

+-------------------------------+
                ¦(Signed)¦R. J. L. MORRIS,      ¦
                +--------+----------------------¦
                ¦        ¦T. S. RAGSDALE,       ¦
                +--------+----------------------¦
                ¦        ¦L. V. SIMPSON,        ¦
                +--------+----------------------¦
                ¦        ¦MILLER, BILLUPS & CO.”¦
                +-------------------------------+
                

Appellants averred that, by virtue of said contract of lease, said Miller, Billups & Co. obligated themselves to deliver to appellees the full, complete and exclusive possession and control of the lots, shops, oxen, wagon, dwelling houses, mill and gin houses, tools, apparatus, machinery, from the 12th day of April, 1878, until the 1st day of January, 1879; that at the expiration of said lease they were bound to give Miller, Billups & Co. possession of said property in as good condition as when delivered to them; that is to say, in good running order, ordinary wear and tear excepted; thereby obligating themselves to rebuild and replace said shops, houses, tools and apparatus, machinery, etc., in case the same was destroyed, or to pay the value thereof, on the 1st day of January, 1879. That whilst said property was in the possession of appellees, on the 2d day of November, 1878, the appellees allowed the shops, houses and tools of Miller, Billups & Co. to be destroyed by fire, and the machinery to be greatly damaged, the ownership of the property being still in Miller, Billups & Co. That appellees refused to replace or rebuild said property, or to pay the value thereof, on the 1st day of January, 1879. Appellants included in their petition a second count, wherein they charged that appellees, on the 2d day of November, 1878, by their gross negligence and carelessness, permitted the property, whilst in their possession, to be destroyed and damaged by fire, and prayed for the value of property destroyed by fire, and for damages to the property injured by the fire.

Appellees in their amended original answer pleaded:

First, to the court, a general exception, and special exceptions to the petition of appellants, all of which were overruled.

Second, a general denial.

Fourth, a special plea in answer to appellants' second count in his petition, averring that if plaintiffs' gin factory was destroyed by fire on the 2d day of November, 1878, that the fire did not occur by reason of the negligence of appellees, and that it grew out of the defective construction and material of which the gin shop, sheds and factory were constructed by plaintiffs; that the fire was the result of the use, natural wear and tear of the gin factory; that appellees took the same care in the preservation of the property that a prudent man does ordinarily of his own property, and that appellees had property of their own in the factory, at the time of its destruction, of the value of $2,000, which was totally destroyed. That the property was destroyed by an accidental fire, and said accidental fire was the natural and immediate result of the wear and tear of the machinery in their ordinary and common use. That at the time of the destruction of the property the machinery was stationary, and had been so for some time, and was not being used by them at all.

Sixth, a special plea, that if appellees ever did enter into a contract with the appellants to repair or rebuild the gin factory, machinery, etc. (and this they denied), that the covenant run with the land to which the gin factory, etc., was affixed; and that at the date of filing suit by appellants, the appellants were not the owners of the land to which the gin factory, etc., were affixed, either in fee, for years or for life.

The appellants' petition at the fall term of the court, 1880, was held insufficient, and they obtained leave to file an amended original petition at that term of the court. The amended petition was not filed until the day the case was regularly called for trial, and on the same day appellees filed an amended original answer, which the attorney for appellants had time to examine, and afterwards announced ready for trial.

The issues of fact were joined, and the court submitted to the jury the following special issues:

First issue: Did the defendants, Morris, Ragsdale & Simpson, lease the property named in the petition from plaintiffs; and if so, did said lease pass to the exclusive control and possession of the whole of said property, mills, engines, machinery and houses?

Second issue: Was said property, or any part thereof, destroyed or damaged by fire while in the possession of defendants, under said lease?

Third issue: What was the value at the time of the burning, of the property, if any, and the damage done to that, if any, damaged by the fire and not destroyed?

Fourth issue: Was the fire caused by the culpable negligence of the defendants? …

To the first issue the jury responded that the defendants had one-fourth capacity of the gin shops and exclusive control of all other property named in the lease.

To the second issue the jury responded that the property was destroyed by fire while in possession of the defendants.

To the third issue the jury responded that the property at the time of the fire was of the value of $3,450, and the damage done to property injured by fire and not destroyed was $300. That total amount of property damaged and destroyed while in the exclusive control and possession of the defendants by virtue of the lease was $2,150.

To the fourth issue the jury responded that they found that the fire was not caused by the negligence of the defendants, and that they are not liable for any damage caused by said fire….

Upon the said findings the court rendered a judgment for the appellees.

T. J. Williams and Posey, Bussey & Hennisberger, for appellants.

I. … Under seventh assignment. The written instrument, or lease, here sued on, after describing the property leased and the terms, concludes with the following covenant: “At the expiration of the above specified time, the said Morris, Ragsdale & Simpson agree to give the said Miller, Billups & Co. peaceable possession of the said shops, oxen, houses, wagon, mill and gin in as good condition as when delivered to them; that is to say, in good running order, ordinary wear and tear excepted;” which covenant or agreement bound and obligated defendants to replace and rebuild said property, if destroyed, or to pay plaintiffs the value thereof. See 2 Black, 281 and note; 3 Id., 228 and note; 1 Washb. on Real Property, pp. 505, 16 and 535; 5 et seq.; Sedg. on Dam., 229; 1 Parsons on Contracts, 503; 2 Parsons on Contracts, 672 and note; 3 Id., 232; Wood's Landlord and Tenant, 373.

II. The covenant in the written lease, as set out in the last proposition, bound defendants to deliver the whole of said property to plaintiffs at the expiration of the lease, and not a portion thereof, and made defendants liable for the whole in case of its destruction, and should have been so construed by the court.

Greenwood & Gooch, for appellees.

I. Where a tenant covenants to surrender the premises at the expiration of the lease in the same condition they are in at the date of the lease, natural wear and tear excepted, but without any express covenant to repair or rebuild, he is not bound, in case the buildings are destroyed by fire during the continuance of...