Dockery v. Thorne

• Decision Date: 22 February 1911
• Citation: 135 S.W. 593
• Parties: DOCKERY v. THORNE.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

135 S.W. 593

DOCKERY v. THORNE.^†

Court of Civil Appeals of Texas.

February 22, 1911.

On Motion for Rehearing, March 15, 1911.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by R. H. Thorne against T. B. Dockery. Judgment for plaintiff, and defendant appeals. Affirmed.

Jones & Jones, for appellant. Z. L. Cobb, for appellee.

FLY, J.

This is a suit instituted by appellee to recover of appellant the rent due on a lodging house in El Paso, known as the "Metropole," a portion of which belonged to appellee and the other portion to Gus Momsen; the rent of the latter portion being due to appellee through a contract between him and Momsen. The pleadings showed that there were two leases to appellant, one by Momsen and the other by appellee, and the latter had acquired the right to collect the rent on the Momsen lease, and had granted an extension on them in favor of appellant for two years. It was claimed by appellant that he leased from appellee a certain part of the house and from Momsen the other part of the house in September, 1906, for a period of one year; the time beginning for both on the same day; that both contained a provision that the contract of lease should not be assigned without the consent of the owner; that with such consent on or about January 26, 1907, appellant assigned both leases to one J. D. Peters, and that his tenancy thereby ceased, although he agreed to guarantee payment on the rent; that afterwards Peters turned over possession of the leased premises to Mrs. Fuller, with the consent and approval of appellee, and afterwards, when the year had expired, the lease to Mrs. Fuller was extended by appellee for himself and as agent of Momsen for two years, and Mrs. Fuller became the lessee of Momsen and appellee; and that appellant was in no way connected with the extension of the lease. The cause was tried by the court without a jury, and he rendered judgment in favor of appellee for $1,415.66, together with 10 per cent. attorney's fees.

The first assignment complains of the overruling of an exception to paragraph 3 of the petition on the ground that it does not allege a privity of contract between appellee and appellant. The petition alleged that appellee was the owner of one lease and the agent of Momsen for the other, and that was sufficient privity. The exception was immaterial anyway, as it was alleged in another part of the petition that appellee was entitled to all the unpaid rents under both leases. The allegations were sufficient to fix the liability of appellant to appellee under both leases.

No rents were claimed for the time Peters occupied the premises, and it was utterly immaterial and unnecessary to allege anything about it, and, as the second assignment deals with that subject, it will be overruled.

Neither was it of any importance as to when Peters vacated the premises, and the third assignment, which attacks the petition because it did not give that date, has no basis whatever. The petition showed clearly when the extension of two years was given to appellant, and that was the time for which appellant was held liable, and not for Peters' time. The petition was sufficient to charge appellant for the rent for two years, and it did not matter when Mrs. Fuller left the premises, and especially is this so in view of the fact that both parties swore that appellant paid for part of the time Mrs. Fuller occupied the house.

The extension of the two leases for two years was signed by appellee alone for himself, and as agent of Momsen, and it is assailed through the fifth assignment of error, because it was not signed by appellant, and was therefore void under the statute of frauds. Appellee testified, however, that the extension was granted to appellant under a verbal agreement between him and appellee, and that was sufficient to take it out of the operation of the statute of frauds. In the case of Bullis v. Presidio Mining Co., 75 Tex. 540, 12 S. W. 397, it was contended by appellants that a contract required by the statute of frauds to be in writing can only be extended in writing, but, said the court, "on the other hand, appellees contend for what we consider the better sustained proposition, that the time of performance of such an undertaking may be extended by a verbal agreement." The judgment was reversed in that case because it was not shown that appellants had verbally agreed to an extension. Again, it is held that when one party to a written contract signs, and the other accepts it without signing, the one failing to sign is bound thereby, and is entitled to its benefits, the same as if he had signed. Martin v. Roberts, 57 Tex. 568; Campbell v. McFadin, 71 Tex. 31, 9 S. W. 138; Kearby v. Hopkins, 14 Tex. Civ. App. 166, 36 S. W. 506. The same authorities permit the introduction of parol evidence to show that the party not signing the agreement had bound himself by it. Appellant not only sought the extension, but paid a part of the rent for the time for which the extension was granted and is not in a position to deny his connection with it.

The original leases were transferred by appellant to Peters, but appellant guaranteed the rent to the lessors, and, when Peters vacated the property, he turned it over to appellant, and he was in possession of the property when the extension was made. This disposes of the seventh assignment of error, which is based on the false premise that there had been no return of the premises to appellant before the extension was made. The evidence showed that there was an extension of the old contract for two years, and that no new contract was executed. The following language of the agreement indicates merely an extension: "This lease has been extended according to conditions and terms therein set forth. Giving the two years' continuation which extends the expiration to Sept. 16, 1909." That was written on the leases which had been signed by the leslors and the lessee, the appellant herein. It indicates on its face that the extension was made to and for the benefit of appellant. Appellant was never released as a tenant even while Peters was occupying the premises, and he was at all times bound for the rent. In the case of Ascarete v. Pfaff, 34 Tex. Civ. App. 375, 78 S. W. 974, decided by this court and cited by appellant, it is held that, when a lease is assigned with the consent of the landlord, the assignee becomes the tenant of the landlord and the original lessee is released, unless he agrees to be bound for the rent. In case he so agrees the rule is, as stated in Patten v. Deshon, 1 Gray (Mass.) 325, and approved in the Ascarete-Pfaff Case: "If the whole or part of the leased premises be transferred by the original lessee for the residue of the term, this is an assignment, and the assignee becomes liable for the whole or a proportionable part of the rent to the original lessor at his election. The first assignee, notwithstanding the assignment, remains liable for the rent, in virtue of his express covenants, if the lessor elects so to hold him, in which case he will be entitled to the rent from the assignees." In connection with the assignment of appellant to Peters, he executed the following written agreement: "Know all men by these presents that I hereby guarantee to R. H. Thorne the rent mentioned in lease on Metropole Rooming House situate at Nos. 110, 112, 114 So. Oregon street, for the term of said lease from R. H. Thorne and Gus Momsen to T. B. Dockery, should J. D. Peters fail to pay same, having assigned same to J. D. Peters." Appellant was the real tenant all the time, and the extension was given for his benefit. He recognized his tenancy by paying a part of the rent due on the extension; in fact, he paid the rent for over half the time. He never at any time denied his tenancy, but recognized it at different times by payments and declarations. Appellee denied that he had any transactions with Mrs. Fuller, and that she did not sign a copy, which was given appellant, with his knowledge or consent. Mrs. Porter, who went into possession of the house in June, 1908, had no contract with appellee, but bought the furniture in the house from appellant, and claimed to pay the rent through him. Appellant admitted paying the rent, but claimed to have done so as the agent of Mrs. Porter. There was evidence that the rent for rooms was collected by appellant, and he stated to Rogers that both Mrs. Fuller and Mrs. Porter owed him for rent, and appellant paid for the electricity, gas and water for the house while Mrs. Porter occupied it.

The trial judge had the...