City Nat. Bank v. Folsom

• Decision Date: 20 January 1923
• Docket Number: (No. 8980.)
• Citation: 247 S.W. 591
• Parties: CITY NAT. BANK OF DALLAS v. FOLSOM.
• Court: Texas Court of Appeals

247 S.W. 591

CITY NAT. BANK OF DALLAS v. FOLSOM.

(No. 8980.)

Court of Civil Appeals of Texas. Dallas.

January 20, 1923.

Appeal from District Court, Dallas County; J. E. Gilbert, Judge.

Suit for injunction by the City National Bank of Dallas against Dr. A. I. Folsom. From an order dissolving a temporary injunction, plaintiff appeals. Affirmed.

Thompson, Knight, Baker & Harris, of Dallas, for appellant.

Thomas, Frank, Milam & Touchstone, of Dallas, for appellee.

JONES, C. J.

This appeal is prosecuted from an order of the trial court dissolving a temporary injunction, issued on the presentation of appellant's petition, November 4, 1922. The injunction restrained appellee from asserting any further rights as a tenant to certain described offices in the Wilson Building, and also restrained him from using any of the general facilities of the Wilson Building which he had theretofore used in the capacity as tenant. The injunction also commanded him to remove from appellant's property and from the offices theretofore occupied by him all his personal effects kept in the offices and in the vault space allowed to his use as such tenant.

The following statement of the case is deemed sufficient: The Wilson Building is an office building in the city of Dallas, and appellee, a physician, on November 1, 1919, entered into possession of the offices in said building described in appellant's petition under a written rental contract for a term of three years, the term expiring November 1, 1922. Among other provisions of the lease contract are the following:

"Seventh. At the termination of this lease by lapse of time or otherwise, to yield up immediate possession to said lessor, and failing so to do, to pay as liquidated damages for the whole time such possession is withheld, the sum of $3 per day, but the provisions of this clause shall not be held as a waiver by said lessor of any right of re-entry, as hereinafter set forth, nor shall the receipt of said rent, or any part thereof, or any other act of apparent affirmance of the tenancy, operate as a waiver of the right to forfeit this lease and the term hereby granted for the period still unexpired for breach of any covenant herein. * * *

"It is agreed between the parties hereto that if default be made in the payment of the rent above reserved or any part thereof, or in any of the covenants or agreements herein contained, to be kept by the said lessee, the said lessor may, at any time thereafter, without notice, declare said term ended and re-enter said leased premises or any part thereof, either with or without process of law, and expel the said lessee, or any person or persons occupying the same, using such force as may be necessary so to do and repossess the said premises again as before this lease, without prejudice to any remedies which might otherwise be used for arrears of rent or for breach of covenant."

At the time of the execution of the rental contract, J. B. Wilson was the owner of the building, but he died during the life of the contract. At his death appellant was made trustee for the heirs or legatees of the said J. B. Wilson, and in such capacity, and in behalf of such heirs or legatees, it brings this suit. W. R. Page was the manager of the Wilson Building, and, as such, had full power to make rental contracts and to give all legal notices to tenants in reference to the terms of their contracts, and also direct them to vacate their space in said building.

Approximately three months before the expiration of appellee's lease, Mr. Page, as such manager, directed a letter to appellee, reminding him that his rental contract would expire on November 1st of that year, and inclosing him a new rental contract for another period of three years, beginning at the expiration of his old contract, and requesting that he execute same. The new contract was substantially the same as the old, except that it increased the rent from $87 per month under the old contract to $108.75 per month under the new. Not receiving any response to this letter, another similar letter was addressed by Page to appellee, and another blank contract inclosed. At the time these letters were sent, appellee was out of the city, and did not return to his office until some time during the month of September. He made no written reply to these letters, but sought an interview with the manager, and informed him that he would not renew the lease for a term of three years, as he had secured space in the Medical Arts Building, then under construction, and desired to remain in the offices until this building would be completed and he could occupy offices therein. This, he thought, would be some time early in the year 1923. This was unsatisfactory to the owners of the building, and appellee was informed that the only lease acceptable to the owners was the one embraced in the blank lease contract sent him, and that three years was the minimum time for which another lease of his offices could be had. On October 20, 1922, appellee was notified in writing by Mr. Page that the owners of the property desired possession of the offices occupied by him at the expiration of his lease, and he was also notified to make his arrangements to vacate at that time and remove his property from the building, as the owners were in a position to rent the space occupied by him, and would rent same, to other tenants on the same terms tendered to him.

Before the expiration of his lease, appellee attempted to get office space for the period of time desired by him in other buildings, but failed to do so. He then informed appellant that he would not vacate the offices on the date of the expiration of his lease, but would hold them, or attempt to hold them, until the time came for his removal to the other building, claiming he had a "holdover" right under said section 7 of the lease contract by the payment of $3 per day provided therein as liquidated damages. This construction of said clause of the contract was denied by appellant, and demand was again made on appellee to vacate the offices at the expiration of his lease.

On the night of November 3, 1922, after appellant and his employés had left the offices for the night, by order of appellant, the locks on all the doors of the offices were changed, the water cut off, the light globes removed and the windows fastened down. This prevented appellee from entering the offices on the next morning except by consent of the manager or his agents, or by the use of force. At about 8:30 a. m. on November 4th, attorneys for a...