Cauble v. Hanson

• Decision Date: 21 October 1920
• Docket Number: (No. 1131.)
• Citation: 224 S.W. 922
• Parties: CAUBLE et al. v. HANSON.
• Court: Texas Court of Appeals

Page 922

224 S.W. 922

CAUBLE et al. v. HANSON.

(No. 1131.)

Court of Civil Appeals of Texas. El Paso.

October 21, 1920.

Rehearing Denied November 4, 1920.

Error from District Court, Glasscock County; Chas. Gibbs, Judge.

Suit by Will Hanson against G. C. Cauble and others. Judgment for plaintiff, and defendants bring error. Affirmed on condition of remittitur.

Blanks, Collins & Jackson, of San Angelo, for plaintiffs in error.

Morrison & Morrison, of Big Springs, for defendant in error.

Statement of Case.

HIGGINS, J.

Defendant in error, Hanson, sued G. C. Cauble, G. C. Cauble, Jr., and T. J. Clegg, plaintiffs in error, for $924, alleged balance due on a note given by the plaintiffs in error Cauble as rental for thirteen sections of land in Glasscock county, leased by Hanson to them by written contract entered into between Hanson and the Caubles of date October 1, 1918.

The defendants Cauble filed a general denial and special answer to the effect that, although they had leased the premises for which plaintiff sought to recover rent, shortly after making such lease they had conveyed the same to their codefendant, Clegg, upon the assumption by him of all obligations resting upon them under the lease contract, and that, with knowledge of such assignment, the plaintiff had accepted rents from the said Clegg and had released them from further liability on the contract.

The defendant Clegg filed a general denial, and by way of special answer and cross-action asserted that, although the plaintiff had leased thirteen sections of land, he failed to procure and deliver two of the sections, and because of such failure his pasturage had failed, the range became inadequate to take care of his cattle, and the value of such leased premises depreciated in a far greater amount than that which the plaintiff was seeking to recover, and as a further result of the shortage of pasturage and water he was compelled to and did expend $500 for extra feed, none of which would have been used had the plaintiff delivered the proper acreage with adequate water supply; that he was compelled to shift and move the cattle about from pasture to pasture, by reason of which fact they failed to take on flesh as they should have done, and were thereby damaged in the sum of $1,000.

Upon trial before the court without a jury judgment was rendered for the plaintiff against all defendants for $547.88, with interest from the date of the judgment, and against the defendants on their cross-action, from which judgment all of the defendants appealed.

The court found that the rental value of the two sections of land which Hanson failed to deliver was $450, and gave credit upon the note for that amount.

Opinion.

On October 7, 1918, the defendants Cauble assigned their leasehold interest to the defendant Clegg, and in part consideration for such assignment Clegg assumed the payment of the note sued upon.

The rendition of the judgment against the defendants Cauble is assigned as error for the reason that the undisputed evidence shows that the Caubles sold and transferred the entire lease contract together with the premises covered thereby to their codefendant, Clegg, who had taken possession thereof with the knowledge and consent of the plaintiff, and that thereafter the plaintiff had accepted and received rental payments from Clegg for such premises knowing that they had been sold, transferred, and assigned to him by the Caubles. The evidence discloses that there was an assignment of the lease by the Caubles to Clegg rather than an under-lease or subletting. Railway Co. v. Settegast, 79 Tex. 256, 15 S. W. 228; Davis v. Vidal, 105 Tex. 444, 151 S. W. 290, 42 L. R. A. (N. S.) 1084; Forrest v. Durnell, 86 Tex. 647, 26 S. W. 481.

The rules of law governing the disposition of the assigned error seem to be well settled. Liability for rent is based upon privity of contract or privity of estate. Where there is an express covenant to pay, the lessee is held in privity of contract. In the absence of an express covenant to pay, the liability arises upon an implied obligation whereby he is held in privity of estate. In the absence of an express covenant to pay rent, if the lessee parts with his estate, with the consent of the lessor, the privity of estate is thereby destroyed, and the lessee is not further obligated to pay rent, since there is nothing upon which to base the implied obligation. In contrast with such cessation of the lessee's liability upon the implied covenant, the rule, where there is an express covenant to pay rent, is that the lessee after assignment remains liable on his express covenant, as in such case, though the privity of estate is terminated by the assignment, the privity of contract is unaffected. The lessee remains liable to the lessor on his express covenant to pay even though the assignment was made with the consent of the lessor. Nor is this continued liability affected by the fact that the lessor has accepted rental payments from the assignee. The receipt of such rent from the assignee does not amount to a novation of the contract or release of the lessee, but is the assertion of a right which accrued to the lessor as an incident of the assignment. Taylor v. De Bus, 31 Ohio St. 468. The lessee is not released from liability on his express covenant to pay rent by an assignment unless there is a novation of the contract whereby the lessor agrees to release him and to the substitution of the assignee as the tenant. The institution of an action by the lessor against the assignee to recover the rent does not itself affect the lessee's liability to the lessor. At his election the lessor may sue either the lessee or the assignee, or both at the same time, though he can have but one satisfaction.

In Coal Co. v. Sharp, 73 W. Va. 427, 80 S. E. 781, 52 L. R. A. (N. S.) 968, Ann. Cas. 1916E, 786, the coal company sued its lessee, Sharp, to recover a rental royalty. Sharp had assigned his lease to the Raven Coal & Coke Company. There was an express agreement to pay the rental royalty. The court said:

"But plaintiff also insists, with more merit in our opinion, that Sharp is still liable to it, even though he assigned the lease to the Raven Coal & Coke Company, whether with or without plaintiff's assent. If the lessee assigns the lease, even with the lessor's assent, the former remains liable on his covenant to pay rent, although rent is accepted from the assignee, unless the lessor expressly agrees to release the lessee and substitute the new tenant in his stead. Port v. Jackson, 17 Johns. (N. Y.) 239; Taylor v. De Bus, 31 Ohio St. 468; Pfaff v. Golden, 126 Mass. 402; Carley v. Lewis, 24 Ind. 23; Jones v. Barnes, 45 Mo. App. 590; Wilson v. Gerhard, 9 Colo. 585, 13 Pac. 705; Oswald v. Fratenburgh, 36 Minn. 270, 31 N. W. 173; Frank v. Maguire, 42 Pa. St. 78; Bonetti v. Treat, 91 Cal. 223, 27 Pac. 612, 14 L. R. A. 151. The covenant to pay rent `inheres in the estate as a covenant real, and binds the assignee of the term, by reason of his privity of estate, to pay the rent accruing during his ownership and possession of the estate, so that, after an assignment of the lease, the lessor has a double and several security for the payment of his rent, either or both of which he may pursue until satisfaction is...