Barret v. Heartfield
| Citation | 140 S.W.2d 942 |
| Decision Date | 22 February 1940 |
| Docket Number | No. 3614.,3614. |
| Parties | BARRET v. HEARTFIELD et al. |
| Court | Court of Appeals of Texas |
Appeal from District Court, Jefferson County; W. S. Nichols, Judge.
Action for rent by W. M. Barret against C. A. Heartfield and others. From an adverse judgment plaintiff appeals.
Affirmed.
Bryan E. Bush, of Shreveport, La., and Orgain, Carroll & Bell and B. D. Orgain, all of Beaumont, for appellant.
W. O. Bowers and W. C. Ross, Jr., both of Beaumont, for appellees.
This is an action for rent eo nomine by appellant, W. M. Barret, against C. A. Heartfield, and appellees, Mrs. R. A. Heartfield and G. B. Heartfield. The case is before us on appeal by appellant from a judgment on an instructed verdict in favor of appellees. Judgment was rendered in favor of appellant against C. A. Heartfield on an instructed verdict on the notes sued upon and certain other issues, from which C. A. Heartfield has not prosecuted an appeal.
The facts between appellant and appellees are as follows: On the 23rd day of May, 1927, appellant leased to the three defendants in this suit a certain lot in Cedar Grove, Caddo Parish, Louisiana, for a period of ten years from the date of the lease, and in consideration the lessees executed to him their monthly rental notes, one for each month, maturing on the first of the month, during the term of the lease. This suit was on the last forty of these notes, the first note in controversy maturing the first day of February, 1934, and the last note on the 1st day of May, 1937, each note for the sum of $150 with interest at eight per cent per annum from maturity, and ten per cent additional as attorney's fees.
The lot was leased to appellees for a filling station, and appellant was to make on the lot the following improvements: "The Lessor hereby agrees to erect on the above described property a filling station with driveways and equipment suitable to lessees, it being agreed between the parties that the total cost of the erection of the filling station, laying of paved driveways, equipping and everything in its entirety shall not cost more than Thirty-Five Hundred ($3,500.00) Dollars, that any addition which would increase the amount to above Thirty-five Hundred Dollars shall be placed thereon by the Lessees herein".
Plans and specifications for the improvements were made a part of the lease contract, and by the contract appellant was obligated to install the following equipment in the filling station:
Appellant erected the building and installed the equipment as per his contract; appellees accepted the building as in compliance with the contract, took possession, and began the operation of the filling station. They remained in possession, duly paying the monthly rental notes, until sometime in 1928, when they made a sub-lease to the Heartfield Company, Ltd., a Louisiana corporation. Whether appellant knew of and consented to this sub-lease was a controverted issue. The corporation paid the lease notes up to and including the note maturing on the first day of December, 1932, and then defaulted in the payment of all other notes. Appellees paid none of the notes after the sub-lease to the Heartfield Company, Ltd. On the 13th day of January, 1934, appellant instituted suit in the first judicial court of Caddo Parish, Louisiana on all notes in default against C. A. Heartfield in personam, "and against Mrs. R. A. Heartfield, G. B. Heartfield, The Heartfield Company, Inc, in rem and against all defendants in solido, in the sum of nineteen hundred and fifty ($1950.00) dollars, together with eight per cent per annum interest on each monthly installment of one hundred and fifty ($150.00) dollars from date until paid, beginning on January 1, 1933, together with attorney's fees of ten per cent on the full amount to be collected, and all costs of this suit." He plead his landlord's lien as follows: "Petitioner further avers that there is equipment, merchandise, furniture and fixtures in said leased premises; that he has a lessor's lien, privilege and right of pledge upon all of the furniture, property, merchandise, fixtures, tanks and equipment in said leased premises, to secure the full amount of the aforesaid indebtedness; and that he has good reason to believe that said sub-leasee and said lessees will remove the furniture, fixtures, equipment, tanks, merchandise and other property out of said premises and that he may be thereby deprived of said lien, privilege and right of pledge."
On his prayer, a provisional writ of seizure was issued commanding the sheriff of Caddo Parish "to provisionally seize, attach and take into your possession the goods, merchandise, furniture and other property now on said leased premises or which may have been removed therefrom within the last fifteen days to the amount of what will suffice to discharge the said debt and costs of suit; and that you give notice of this proceeding, and make return of this writ, stating the manner in which you have executed the same, before our said Court, on the first day of our next term thereof."
On this writ on the 15th day of January, 1934, the sheriff seized the following property, as shown by his return: "I have seized and taken into my official possession the following equipment: 1 cash register, 1 hall tree, 1 typewriter, 1 check protector, 1 Barough adding machine, 1 steel filing cabinate, 1 Electric vulcanizer, 1 lot auto axcesares, 1 tire changer, 1 tire spreader, 1 steel tire rack, 3 oil containers, 1 coal oil container, 1 greese gun, 2 Tokheim Electric pumps, 1 gas heater, 1 floor jack, 1 steel greese rack, 1 steel safe, 1 office table, 1- 550 & 1- 280 gallon storage gasoline tanks, 1 electric buffer and all notes receivable, 2- 10 gallon visable gasoline pumps, 2- 550 gasoline storage tanks, 1 air compressor, 5 oil containers."
On the 11th day of April, 1934, appellant was awarded judgment in personam against C. A. Heartfield "and against Mrs. R. A. Heartfield, G. B. Heartfield and The Heartfield Company, Inc. in rem, insofar as may be satisfied out of the proceeds of the property herein seized, and against all defend...
To continue reading
Request your trial
-
Walter E. Heller & Co. v. Allen, 221
...§ 260, pp. 113--114; Patteson v. McGee, Tex.Civ.App., 350 S.W.2d 241; Nutt v. Berry, Tex.Civ.App., 323 S.W.2d 500; Barret v. Heartfield, Tex.Civ.App., 140 S.W.2d 942, writ ref. Where the circumstances and acts of the parties are equivalent to an agreement on the part of the tenant to abando......
-
In re Tobago Bay Trading Co., Bankruptcy No. A90-02195-SWC
...as made-acts which are necessarily inconsistent with the continued relation of landlord and tenant." Barret v. Heartfield, 140 S.W.2d 942, 945 (Tex.Civ.App.—Beaumont 1940) (quoting 35 C.J. 1086). Thus, under both Georgia and Texas case law, an agreement to terminate a lease may be implied b......
-
Vanity Fair Properties v. Billingsley
...See, e.g., Stewart v. Basey, 241 S.W.2d 353, 358 (Tex.Civ.App.1951), aff'd 150 Tex. 666, 245 S.W.2d 484; Barret v. Heartfield, 140 S.W.2d 942, 944--945 (Tex.Civ.App.1940). An agreement to terminate may be inferred from the objective acts of the parties. See, e.g., Cannon v. Freyermuth, 4 S.......
-
In Re: Warren Dronebarger And Doralee Carol Dronebarger. Debtors
...of the minds.Arrington v. Loveless, 486 S.W. 2d 604, 607 (Tex. Civ. App.--Fort Worth 1972, no writ); Barret v. Heartfield, 140 S.W.2d 942, 944-45 (Tex.Civ.App.--Beaumont 1940, writ ref'd). A lease for a definite term requires no action for its expiration at the end of the term, as the lease......