Carter v. Stovall
| Decision Date | 04 June 1956 |
| Docket Number | No. 6603,6603 |
| Citation | 291 S.W.2d 411 |
| Parties | F. E. CARTER, Appellant, v. Roy STOVALL, Appellee. |
| Court | Texas Court of Appeals |
A. W. Salyars, Lubbock, for appellant.
Ratliff, Conner & Walker, Spur, for appellee.
This is an action brought by Roy Stovall, as plaintiff, against F. E. Carter and W. H. Houser, as defendants, to recover from the defendants the balance alleged to be due as rent on a written rental contract entered into between the parties on January 1, 1950. Roy Stovall, as lessor, and F. E Carter and W. H. Houser, as lessees, made and entered into a lease contract whereby Roy Stovall leased to Carter and Houser a certain building known as the Palace Drug Store on Burlington Avenue in the City of Spur, Dickens County, Texas, for the term of five years beginning the first day of January A. D. 1950 and ending the 31 day of December 1954. The consideration for such lease was the sum of $6,000 payable in 60 monthly installments in the amount of $100 each. The first of such installments coming due and payable on or before the first day of January 1950 and one of such becoming due and payable on or before the first of each succeeding month thereafter through the term of the lease. The lessee was to pay the rent at Spur in Dickens County, Texas, monthly in advance as the same should fall due and payable. Since it was called to the court's attention that Mr. Houser was deceased, the case was dismissed as to him and there is no question raised any further as to Mr. Houser. There were several matters presented to the court but finally the plaintiff made and presented his motion for summary judgment and both parties filed and presented their affidavits in connection with such motion. The trial court sustained the motion for summary judgment and granted judgment for the plaintiff in the sum of $1,081.50 together with interest at the rate of 6 per cent from the date of judgment. From this judgment the defendant perfected this appeal and he will hereafter be referred to as appellant and the plaintiff as appellee. The appellant presents this appeal upon three points of error as follows:
'First Point:
'The trial court erred in rendering summary judgment for plaintiff.
'Second Point:
'The trial court erred in rendering summary judgment for plaintiff and refusing to grant defendant a trial by jury on the questions of fact raised by the pleadings and affidavits.
'Third Point:
'The trial court erred in rendering summary judgment for plaintiff because as a matter of law the pleadings and defense of F. E. Carter, supported by the affidavits of F. E. Carter and Mrs. Barbara E. Johnston, raised a question of fact as to whether or not plaintiff had waived his rights under the rental contract sued on and was estopped to assert any claim thereunder, defendant Carter having requested trial by jury on such fact questions.'
However, all three of the above points were presentd together and the sole contention being made by the appellants resolves itself down to the point as to whether or not the fact that Mr. Stovall accepted rent from other occupants of the building and acted in such manner by doing so that he released Mr. Carter under the terms of the lease contract.
We think the undisputed record in this case shows that after the above lease was made and entered into by and between Mr. Stovall and Mr. Carter and Houser that Mr. Carter and Mr. Houser took immediate possession of the premises and paid the monthly rentals and continued to do so until October 1, 1951, and at that time one H. J. Burt took possession of such premises and remained therein and operated the drug store until some time around September of 1953. There is no question about any rents up until in September 1953. Some time during September 1953 Mrs. Barbara Johnston took possession of said premises and operated a drug store therein until some time...
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