Cartledge v. Sinclair Refining Co., 10324

• Decision Date: 01 June 1955
• Docket Number: No. 10324,10324
• Citation: 280 S.W.2d 312
• Parties: Eugene H. CARTLEDGE et al., Appellants, v. SINCLAIR REFINING COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 312

280 S.W.2d 312

Eugene H. CARTLEDGE et al., Appellants, v. SINCLAIR REFINING COMPANY, Appellee.

No. 10324.

Court of Civil Appeals of Texas, Austin.

June 1, 1955.

Powell, Wirtz, Rauhut & McGinnis, Wm. A. Brown, Austin, for appellant.

Sloan Blair, Ft. Worth, James R. Meyers, Coleman Gay, Austin, for appellee.

HUGHES, Justice.

This suit was instituted by appellants, W. R. Cartledge and his son, Eugene H. Cartledge, against Sinclair Refining Company to cancel a lease covering Lot 22, Outlot 22, Division D, Horst Addition to the City of Austin, executed October 14, 1947, by W. R. Cartledge and his wife, Mrs. Josephine Cartledge. The primary term of the lease was ten years commencing April 26, 1948. Dependent upon cancellation consequential damages were sought.

The only ground pleaded as a basis for termination of the lease was the failure of Sinclair to pay stipulated rents as due.

Both parties moved for summary judgment, the motion of appellee being granted and that of appellants being denied. Judgment was rendered that appellants take nothing by their suit.

The facts are undisputed.

With regard to the payment of rents the lease provided:

'* * * all rentals hereunder to be paid monthly in advance not later than the 10th day of each and every month, in lawful money of the United States of America and, unless otherwise directed by Lessors, may be paid by check or draft payable to the order of Mrs. Josephine Cartledge, and mailed to P. O. Box 113, Marfa, Texas, or to such other address as Lessors may from time to time hereafter designate in writing.'

The forfeiture provision of the lease reads:

'In the event Lessee shall be in default in the payment of rentals or other charges hereunder, or otherwise, and shall remain in default for a period of thirty (30) days after notice from Lessors to it of such default, Lessors shall have the right and privilege of terminating this lease and declaring the same at an end and of entering upon and taking possession of said real estate and shall have the remedies now or hereafter provided by law for recovery of rent, repossession of the premises and damages occasioned by such default.'

The lease was made binding upon the 'heirs, personal representative and assigns of Lessors and upon the successors and assigns of Lessee.'

Mrs. Josephine Cartledge died in May, 1950. She left a will, duly probated, by the terms of which her son, Eugene H. Cartledge, was devised a one half interest in the above described lot.

There was no default in the payment of rents prior to the death of Mrs. Cartledge, Sinclair making payment to her by check as authorized by the lease.

Several months prior to the death of Mrs. Cartledge she became, because of illness, unable to endorse the rent checks. Sinclair upon being advised of this situation instructed Mr. W. R. Cartledge to endorse the checks for deposit to account of Mrs. Josephine Cartledge 'without any signature.'

This practice, commenced before the death of Mrs. Cartledge, continued for more than three years after the death of Mrs. Cartledge, Sinclair not having been advised of her demise. The account in which the rents were deposited was drawn upon by appellants and there is no question concerning the disposition of these funds.

Sinclair first learned of Mrs. Cartledge's death about July 25, 1953, when an indemnity bond sent by it to Mrs. Cartledge in connection with replacement of a lost check was returned showing execution by 'Eugene H. Cartledge, Ind. Executor of the Estate of Mrs. J. Cartledge and/or Mrs. Josephine Cartledge, deceased.'

The rent for August, 1953 was paid by Sinclair on time.

On August 16, 1953, Mr. Eugene H. Cartledge wrote Sinclair a letter regarding a proposed sale of the property in which he state 'The reason for the delay, of course, was that you addressed the reply to my father who knew nothing of my letter inasmuch as the filling station property I wrote Mr. Conley about is mine, having been inherited from my mother.'

In reply to this letter Sinclair on August 19, 1953, wrote Mr. Cartledge a letter in which it stated:

'You state that the property covered by this lease is now owned by you through an inheritance from you mother. This is the first information we have received in connection with your ownership of the property and we are asking that you please furnish us with a copy of the probate proceedings showing that the property now belongs to you. This will be necessary in order for us to prepare rental checks in your name.'

Following payment of the August 1953 rent Sinclair suspended payment of rents and heard nothing from either Mr. Cartledge until a letter from the son dated January 29, 1954, was received. In this letter he stated:

'For several months now I have not received any rent checks from you. Mr. Lilley said he would need a copy of the probate proceedings to make the rent checks out in my mane. The filling station was owned by my father, Mr. W. R. Cartledge and my mother, Josephine Cartledge who died in 1950 and willed her one-half interest to me, as you can tell by the records in the courthouse. I don't care about changing the name on the checks because I am executor of my mother's estate. I need the rent right away so just send it the way you used to send it.'

Sinclair answered this letter February 1, 1954, by letter stating:

'We have asked our Legal Department at Fort Worth to let us know why they have not as yet been able to arrange to resume the issuance of rental checks under the lease in question. It is assumed that some delay has been experienced in obtaining the necessary papers.'

On February 4, 1954, Sinclair's Legal Department wrote Mr. Eugene W. ¹ Cartledge as follows:

'If you will furnish us with a...