Altgelt v. Gerbic

• Decision Date: 29 May 1912
• Parties: ALTGELT v. GERBIC.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

Page 233

149 S.W. 233

ALTGELT v. GERBIC.^†

Court of Civil Appeals of Texas. San Antonio.

May 29, 1912.

Rehearing Denied June 26, 1912.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by M. Gerbic against George C. Altgelt. From a judgment for plaintiff, defendant appeals. Affirmed.

Perry J. Lewis and H. C. Carter, both of San Antonio, for appellant. O. M. Fitzhugh and M. Coppard, both of San Antonio, for appellee.

FLY, J.

Appellee instituted this suit, alleging that he is a dealer in meats and other articles commonly sold in meat markets, that being his sole occupation; that appellant, who is an attorney at law in San Antonio, owned a certain house in said city "known as house No. 113 on the west side of North Flores street"; that on or about November 30, 1910, appellee, in order to obtain the use of said house for a meat market, entered into a written lease contract with appellant for said house for two years, which is set out in the petition, and gave appellant a deed of trust on lot 4, block 5, new city block 1907, to secure appellant for the rent of his house. Appellee alleged that, before executing the instruments aforesaid, he sought the professional counsel of appellant as to his legal right to operate a meat market, including the handling and selling of all kinds of fresh meats on the rented premises, and as to whether it would be lawful for appellee to conduct such business, informing appellant that appellee would not lease the premises unless he could use it as a meat market, and appellant "advised plaintiff that there was no law or city ordinance forbidding the use of aforesaid premises for the purposes mentioned, and therefore there could be no legal interference with plaintiff on account of his operating a meat market therein; that plaintiff then told defendant that "he (plaintiff) could not very well understand or read the English language and was not familiar with the laws of the city of San Antonio and state of Texas, and that he would trust defendant and rely upon defendant to protect him on all legal points involved in the making of the aforesaid lease contract." It was further alleged that appellee relied on the advice of appellant and was thereby induced to enter into the contract; "that immediately following the execution of the aforesaid contract plaintiff equipped said building as a meat market and began the operation of said business therein; that thereupon plaintiff was arrested by the legally constituted authorities of the city of San Antonio as a violator of an ordinance of said city, which forbids the operation of a meat market within six blocks of the city market house within said city"; that appellee was forbidden to pursue said occupation, under a penalty of a daily fine of from $10 to $100; that he could not use the premises for any other purpose and sought from appellant the authority to sublease the house, which was denied him; that he then tendered the possession of the premises to appellant and asked for a release from the contract and deed of trust, but, while appellant accepted possession of the premises, he refused to release the deed of trust and rescind the lease contract. Appellee alleged that there was a mutual mistake as to the existence of the ordinance, which deprived appellee of the use of the premises. Appellee sought the rescission of the contract and the cancellation of the deed of trust and also prayed for damages. Appellant filed a general demurrer and 16 special exceptions, and answered by a general denial and that appellee voluntarily abandoned the premises without the consent of appellant. The cause was tried by jury, and resulted in a verdict and judgment canceling the lease and deed of trust.

There was evidence which supported the verdict and sustained the allegations of the petition. Appellant knew the purposes for which his premises were leased by appellee, and the contract was made under the mutual mistake of the parties that a meat market could be conducted in the rented premises. Such occupation was, however, unlawful on the premises, and appellee was forced to give up his occupation by the police of San Antonio.

The petition was not subject to general demurrer. The facts stated in the petition rendered it unnecessary to allege that appellee was ready and willing to perform the contract. The city ordinance rendered it impossible for him to carry on his business, and he alleged that he had no other occupation, and that appellant would not permit him to sublease the property. He also alleged that he had been induced to lease the premises by the representations of appellant, who was his attorney, that his occupation could be conducted in the premises. The latter allegations were properly made and were not subject to the special exceptions aimed at them, the overruling of which is assailed in the second assignment of error. It is true that appellee agreed in his contract to use the premises for legitimate purposes, but he had the right to show that appellant not only knew for what purposes the premises were rented, but advised appellant that such use was legitimate and proper. If there was an illegitimate use of the premises, it was done with the knowledge and consent of appellant, and under his advice and counsel. The case of Beer v. Landman, 88 Tex. 450, 31 S. W. 805, cited by appellant, has no applicability to the facts alleged or proved.

There was an allegation that "the ordinance of the city of San Antonio forbidding the operation of a meat market within designated territory, including the premises in question, "was and is a valid ordinance of said city, legally passed and adopted," and that was all that it was necessary to allege. The pleading covered everything that was necessary to make the ordinance legal and valid, and there was no more necessity for alleging that the ordinance had been published at least 10 times in some newspaper, than it was to allege that it was approved by the mayor or passed over his veto, or any of the other details necessary to make a valid ordinance. The case of City of Austin v. Walton, 68 Tex. 507, 5 S. W. 70, is not authority for the position taken by appellant under the fourth and fifth assignments of error. That decision does not hold that it was necessary to allege every step taken in the passage of an ordinance, but merely that the petition should have stated the contents of the ordinance so that the court could judge whether plaintiffs were entitled to recover commissions or not. The same rule is stated in Brush Co. v. Lefevre, 93 Tex. 604, 57 S. W. 640, 49 L. R. A. 771, 77 Am. St. Rep. 898. If appellant deemed the ordinance invalid, he should have alleged and proved it.

The petition clearly alleges the ignorance of appellee, and that, in reliance upon the superior knowledge of law on the part of appellant, he had rented the house and engaged in his chosen...