Clark v. Jones

• Decision Date: 25 September 1942
• Docket Number: No. 2290.,2290.
• Citation: 164 S.W.2d 62
• Parties: CLARK et al. v. JONES.
• Court: Texas Court of Appeals

Page 62

164 S.W.2d 62

CLARK et al. v. JONES.

No. 2290.

Court of Civil Appeals of Texas. Eastland.

September 25, 1942.

Rehearing Denied October 16, 1942.

Appeal from Scurry County Court; Sterling Williams, Judge.

Suit by G. B. Clark, Sr., and others against W. L. Jones for rent of a building. From an adverse judgment, the plaintiffs appeal.

Affirmed.

H. J. Brice, of Snyder, for appellants.

Carl M. Anderson, of Sweetwater, for appellee.

GRISSOM, Justice.

G. B. Clark, Sr., et al. instituted this suit against W. L. Jones to recover the unpaid installments of rent alleged to be due them by W. L. Jones for the rent of a building. Plaintiffs alleged that about April 1, 1939, they rented the first floor of their store building to defendant for a term of three years, beginning May 1, 1939, and ending the 30th day of April, 1942, for a consideration of $2,700 for said term, payable in thirty-six monthly installments of $75 each, and that about June 1, 1942, defendant moved from the rented building and refused to pay the remaining monthly rent installments for June 1, 1941, to April 1, 1942, aggregating $825. Plaintiffs alleged that "as a prerequisite to the entry of possession by defendant as lessee of said premises the Plaintiffs agreed to and with defendant that they would make certain repairs and improvements upon said mercantile building * * * at a cost of $1,201.21, and Defendant approved said repairs and improvements and entered into possession of said premises * * *".

Defendant, among other things, answered that if the rental agreement was made, as alleged by plaintiffs, that it was oral, contrary to the Statute of Frauds, Art. 3995, pleaded as a defense. By supplemental petition plaintiffs alleged "defendant is estopped to plead the provisions of Art. 3995 * * * as a defense * * *". To such plea of estoppel defendant excepted "because the same states no facts by reason of which this defendant is alleged to be estopped to plead the provisions of Art. 3995 * * * and this Defendant is therefore not apprised of what is sought to be proved * * * so as to be able to prepare his defense * * *".

At the conclusion of the testimony defendant filed a motion for an instructed verdict, which was marked "Given" by the trial court. However, the record discloses such instruction was not actually given to the jury, but that the court discharged the jury and rendered judgment for defendant. The judgment recites that at the conclusion of the testimony and argument it appeared to the court there was no question of fact to submit to the jury and therefore the jury was discharged and judgment rendered for defendant, and that the court was of the opinion defendant's motion for an instructed verdict should have been granted and that defendant as a matter of law was entitled to the judgment rendered. Plaintiffs have appealed.

The points presented for the reversal of the judgment are that the court erred in refusing to give plaintiffs' requested Special Issues Numbers 1, 2 and 3, and that the court erred in failing to make and file with the clerk findings of fact and conclusions of law. The 4th and 5th points are overruled because the supplemental transcript discloses the trial court did make and file with the clerk findings of fact and conclusions of law. The special issues requested by the plaintiffs, the refusal of the submission of which constitute the basis of points 1, 2, and 3, are not shown in appellants' brief. However, we have given careful consideration to...