Ascarete v. Pfaff
| Decision Date | 27 January 1904 |
| Citation | 78 S.W. 974 |
| Parties | ASCARETE v. PFAFF.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from El Paso County Court; Jos. N. Sweeney, Judge.
Action by W. R. Ascarete against Henry Pfaff. From a judgment for defendant, plaintiff appeals. Affirmed.
S. Engelking, for appellant. Seymour Thurmond, for appellee.
Appellant sought to recover of appellee the sum of $600, alleged to be due on a rental contract between J. D. Ochoa and appellee, whereby the latter had agreed to pay the sum of $100 a month for certain premises in the city of El Paso. The case was tried by the court, and judgment was rendered for appellee.
J. D. Ochoa had rented the premises, which were the separate property of his wife, to appellee for eight years from July, 1902; at the rate of $100 a month, payable each month in advance; and he paid the rent up to February 1, 1903. On January 23, 1903, a lease was assigned by a written instrument, for a valuable consideration, by Ochoa and wife to appellant. By the terms of the transfer of the lease, it was to be annexed to the lease, which is in no other manner identified, but it was not so annexed. However, Ochoa testified that the transfer was of the lease made by him to appellee. Appellant sued for the rent for six months from February 1, 1903. The court admitted the transfer of the lease in evidence, but afterwards, at the instance of appellee, struck it out, because it did not identify the lease to which it referred. The court also refused to consider the lease from J. D. Ochoa to appellee because the property was the separate estate of his wife, and she had not joined him in the lease contract.
While the assignment of the lease was indefinite, in not describing the lease, and in not being annexed to it, still, when Ochoa testified as to the lease that was intended, he made certain the lease that was assigned by the writing. "For the purpose of identifying the subject-matter to which the written contract relates, parol testimony of that which was in the minds of the parties, and to which their testimony was directed at the time, may be given." Kirk v. Brazos County, 73 Tex. 56, 11 S. W. 143. In the case of Dority v. Dority (Tex. Sup.) 71 S. W. 950, 60 L. R. A. 941, it was held by the Supreme Court of Texas that a lease of the wife's separate real property for a term exceeding one year by the husband, without the joinder of the wife in the lease, is invalid; the same formalities being required in a lease of that character as are essential in the sale of her separate estate. Mrs. Ochoa did not join in the lease to appellee, and it was therefore null and void, unless the act of the husband was ratified by the wife by her joinder in the transfer. The assignment of the lease was in writing, and was signed and duly acknowledged by Ochoa and wife. By the terms of the transfer, the lease was not only referred to, but it was intended that it should be annexed and form a part of the assignment. It appears that the wife had a full knowledge of the facts, and, when she signed and...
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...of ratification applied by the courts of this state, see Humble Oil & Ref. Co. v. Davis, Tex.Civ.App., 282 S.W. 930; Ascarete v. Pfaff, 34 Tex.Civ.App. 375, 78 S.W. 974; Van Deventer v. Gulf Production Co., Tex.Civ.App., 41 S.W.2d 1029 (writ refused); Buvens et al. v. Brown, 118 Tex. 551, 1......
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...herein appeared to be in conflict with the opinion of the Court of Civil Appeals at San Antonio in the case of Ascarete v. Pfaff, 34 Tex. Civ. App. 375, 78 S. W. 974. As showing the nature of the assignment in the application under which the Caubles entirely disclaim liability, we quote as ......
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