Cameron v. Calhoun-Smith Distributing Company, CALHOUN-SMITH

• Decision Date: 18 June 1969
• Docket Number: No. 11680,CALHOUN-SMITH,11680
• Citation: 442 S.W.2d 815
• Parties: Ray CAMERON, Appellant. v.DISTRIBUTING COMPANY, Appellee. . Austin
• Court: Texas Court of Appeals

Page 815

442 S.W.2d 815

Ray CAMERON, Appellant. v. CALHOUN-SMITH DISTRIBUTING COMPANY, Appellee.

No. 11680.

Court of Civil Appeals of Texas Austin.

June 18, 1969.

Joseph B. Dibrell, Seguin, for appellant.

Jack F. Cook, Jr., Austin, for appellee.

HUGHES, Justice.

This is a suit for rents allegedly due under a five year lease contract entered into by Calhoun-Smith Distributing Company, Lessor and Ray Cameron, Lessee. A nonjury trial resulted in judgment for Lessor, Appellee, for the amounts sued for including a sum for reasonable attorney's fees as provided for in the lease.

The first point made by Lessee, Appellant, is that the uncontradicted evidence shows that the premises became untenantable for cafe purposes, this being the purpose for which the premises were leased, because of faulty sewage and drainage facilities which Lessor failed to correct, forcing abandonment of the premises.

The evidence is undisputed that the leased premises became unusable for cafe purposes because of faulty drainage resulting in sewage backing up in the cafe during rainy weather.

The lease provides that Lessee agreed to 'accept possession of the demised premises in their present condition * * *' and that 'in taking this lease, he is governed by his own inspection of the premises and his own judgment of their desirability for its purposes * * *'

The cafe building was constructed under an agreement between the parties the appellee would furnish the land and $3,500.00 for its construction and appellant would pay any additional amound required. This was done. Later it was agreed that appellee would put up an additional $1,500.00 to build a kitchen. This was done. The rents provided for in the leases were based on these expenditures. It seems that neither party supervised the construction of the improvements.

The general rule is that there is no implied warranty on the part of the landlord that the premises are fit for the purpose for which they are leased. 35 Tex.Jur.2d, Landlord and Tenant, Sec. 50. This rule, coupled with the lease provisions which we have quoted, requires us to overrule appellant's first point, which we do.

Appellant's second point is that since appellee failed to make a reasonable effort to lease the premises after being vacated that he should not recover.

The lease provided that in the event it was cancelled by Lessor for breach of any of its provisions that Lessee should remain liable for the stipulated rents less '* * * the rent which Lessor, after reasonable effort, shall be able to obtain upon a reletting of the premises.'

M. Ford Smith, President of Appellee Corporation, testified:

'Q Now, during this time, there was about a year that the place was vacant. Is it not true that Mr. Cameron made every effort to get new tenants in the building?

A I had talked to a couple of tenants he had sent by which--

Q Die you not refuse to see quite a few of the tenants he sent to your?

A I do not believe I refused to see any tenant he sent by Q Did you make any effort, at all, to sublease the premises during that period of time of the vacancy?

A I talked to a couple of people who were interested in renting the building. Seems like there was a lady out in Oak Hill that contacted me one time. I had numerous calls on the building, which, each time, I referred them to Mrs. Cameron because as far as I was concerned, they were still leasing the building.'

The lease expired by its terms May 31, 1968. In December 1967, appellee leased the premises to Mr. Pack for $100.00 per month, however, appellee collected only $300.00 from Mr. Pack prior to May 31st although Mr. Pack occupied the premises...