Apex Co. v. Grant

• Decision Date: 27 June 1925
• Docket Number: (No. 9363.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 276 S.W. 445
• Parties: APEX CO. v. GRANT et ux.
• Court: Texas Court of Appeals

276 S.W. 445

APEX CO. v. GRANT et ux.

(No. 9363.)^*

Court of Civil Appeals of Texas. Dallas.

June 27, 1925.

Rehearing Denied October 24, 1925.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Action by J. E. Grant and wife against the Apex Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Crane & Crane and H. E. Spafford, all of Dallas, for appellant.

Thompson, Knight, Baker & Harris, of Dallas, for appellees.

JONES, C. J.

In a suit in the district court of Dallas county, appellees, J. E. Grant and wife, recovered judgment against appellant, the Apex Company, a corporation, in the sum of $12,628.87 as damages for breach of a contract of lease. Appellee J. E. Grant was the owner of the building at the time the contract was made and at the time appellant repudiated the contract, but, pending the controversy between the parties, the building and lease contract were sold to J. M. Coleman. Previous to the trial of the case, however, Coleman conveyed the building and the lease contract to appellee Mrs. M. C. Grant, who is the wife of J. E. Grant. During all this time appellee J. E. Grant had active control of the building, either as owner or agent for the owners, and where the term "appellee" is used in this opinion it refers to J. E. Grant. The following are the facts:

J. E. Grant was the owner of a business house located on North Harwood street in the city of Dallas, Tex., and, as evidenced by a written contract, leased said building to appellant for a term of two years from January 1, 1921, for the sum of $19,200, payable in monthly installments of $800 on the 1st of each month. Appellant's business was that of a wholesale and retail dealer in wall paper, paint, and glass, and the sum of $580 was expended by the owner in making the building suitable for this business. After appellant had occupied the leased premises for approximately seven months, it notified appellee that its business had increased to such an extent that it was necessary to have more space and that it had leased another building. It asked permission of appellee to sublet said building for the remainder of the term of its lease, and asked consent for Sandusky & Beck to take over the said lease as its subtenants. Sandusky & Beck desired to use the building as a storeroom for automobiles and also as an automobile garage. Appellee declined to permit appellant to sublet the building to the proffered tenants, on the ground that it would increase the fire hazard and that the character of business, for which the proffered tenants would use the building, would tend to decrease its rental value and would change its character from that of a mercantile building, which carried a higher rental. Appellee insisted on appellant's carrying out its written contract of lease, though he signified that a tenant who would use the building for mercantile business would be acceptable to him as a subtenant. No other tender of a tenant was proffered appellee by appellant. After some correspondence and oral conversations between appellee and the representatives of appellant, appellant notified appellee that it would pay the monthly installments of rent under the contract up to and including the 30th day of September, 1921, but would not thereafter occupy the building or pay the rent, claiming the right to cancel the lease because of appellee's refusal to accept the proffered tenant. Appellee notified appellant of his denial of this right, and that he would insist on appellant's carrying out its contract. He also notified appellant if it did repudiate the contract as indicated, he would attempt to re-rent the building, but only for appellant's account, and would still hold it for whatever difference there might be in the contract rental and the amount of rental he might thus be able to receive.

The jury, on the special issue submitted, found that appellee used reasonable diligence to realize from the property all rents and revenues practicable for the remaining period of the contract. As this finding is abundantly supported by evidence, it is adopted as the finding of this court. The sum of $969.35 was realized by appellee as rental on the building for the remainder of the term of appellant's lease, and this sum was deducted from the balance due under the lease contract, interest being allowed on each monthly installment from the time it became due.

The lease contract had a stipulation that the building was "to be occupied as wholesale and retail wall paper, paint, and glass store, and not otherwise." The contract also contained the two following clauses:

"That the lessee shall not assign this agreement, or underlet the premises or any part thereof * * * or make any alteration in the building or premises * * * without the consent of the lessor in writing; or occupy, or permit or suffer same to be occupied, for any business or purpose deemed extrahazardous on account of fire.

"In case of default in any of the above covenants, the lessor may enforce the performance thereof in any mode provided by law, and may declare the lease forfeited at his discretion, and he or his agent, or attorney, shall have the right without further notice or demand, to reenter and remove all persons therefrom without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of rent or breach of covenant, or he or his agent or attorney may resume possession of the premises and re-let the same for the remainder of the term at the best rent he may obtain, for account of the lessee, who shall make good any deficiency. * * *"

The cause was submitted to the jury on special issues, in which the jury was only required to answer the first issue submitted because of the finding made on this issue. As the questions to be decided on this appeal relate to...