Brady v. Nagle
| Decision Date | 20 February 1895 |
| Parties | BRADY v. NAGLE et al. |
| Court | Texas Court of Appeals |
Appeal from Llano county court; J. M. Moore, Judge.
Action by William B. Brady against Kate Nagle and others. There was a judgment against defendant Nagle for one month's rent, and in favor of defendant A. P. Brown & Co., and from this judgment plaintiff appeals. Reversed.
Plaintiff brought this action against Kate Nagle for the nonpayment of rent of an hotel building which she occupied under a written contract of lease, and made A. P. Brown & Co. parties defendant, on the ground that they received, and mingled with furniture of their own, certain furniture which the defendant Nagle had owned, kept, and used in the leased premises, and with notice of the landlord's lien which plaintiff had upon the same to secure the payment of rent in which default had been made by defendant Nagle for the months beginning September 18 and October 18, 1892, and until October 20th, when she vacated the premises, and to recover the difference between the amount for which plaintiff had been able to rent the building and that due under the contract of defendant for the unexpired portion of the lease. The furniture in question was in the possession of defendant Nagle under the terms of a conditional sale from A. P. Brown & Co., the contract of sale of which was unrecorded.
W. A. H. Miller and Chas. L. Lauderdale, for appellant.
1. The evidence complained of in the second assignment of error was not admissible, because there were no pleadings which authorized such testimony, and because the evidence did not show that Roberts and wife were the agents of appellant. The agency cannot be proven by the declarations of the one claiming to act as agent.
2. The evidence complained of in the third and fifth assignments of error should not have been admitted. This evidence was not admissible under the general issue, and the issues raised by it should have been pleaded, which was not done. The facts testified to by Brown concerning the previous levy of a distress warrant covering a part of the rent due and the release of the property distrained would not estop Brady from pursuing his remedy by distress warrant in this action.
3. The contract of lease between the appellant and Mrs. Nagle did not warrant Mrs. Nagle in abandoning the tenancy under that contract, and regarding it as at an end, when she failed to pay the monthly installments of rent as they fell due. The contract in this respect reads as follows: "In the event the rental money, or any part thereof, is not paid at the time herein mentioned, then this lease is to terminate, and the said party of the second part [the lessee] is to vacate the premises at once." This provision...
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