Dycus v. Traders' Bank & Trust Co.

• Decision Date: 31 October 1908
• Citation: Dycus v. Traders' Bank & Trust Co., 113 S.W. 329, 52 Tex. Civ. App. 175 (Tex. App. 1908)
• Parties: DYCUS v. TRADERS' BANK & TRUST CO.
• Court: Texas Court of Appeals

113 S.W. 329

DYCUS v. TRADERS' BANK & TRUST CO.

Court of Civil Appeals of Texas.

October 31, 1908.

Appeal from District Court, Dallas County; J. C. Roberts, Judge.

Action by the Traders' Bank & Trust Company against N. D. Dycus. From an order granting plaintiff a temporary injunction, defendant appeals. Affirmed.

Albert W. Webb, for appellant. J. J. Eckford, for appellee.

RAINEY, C. J.

This is an appeal from an order granting a temporary injunction restraining the appellant from installing a moving picture show in a building that had been leased from appellee by appellant. Plaintiff's petition alleged, in substance, that the property in controversy had been on July 11, 1908, leased to defendant for use as a billiard and pool hall, and not otherwise; that a moving picture show would be a use not permitted by the lease, and it would be a nuisance generally; that it would increase the fire hazard, contrary to the terms of the lease; and that alterations were being made in the building contrary to the terms of the lease. Defendant answered by general and special exceptions, general denial, and specially an express agreement and permission for the use of the building as a moving picture show, etc. Upon the hearing of the application for the temporary writ, after notice to defendant, the court granted the writ, and the cause is here for review.

The written lease under which Dycus held the building provided "that the premises were to be `occupied as a pool and billiard room and not otherwise'; that `no improvements or alterations shall be made in or to the hereby demised premises without the consent of the lessor in writing'; `that the lessee shall not assign this agreement or underlet the premises or any part thereof, except as may be mentioned above, or make any alterations in the building or premises, except as may be mentioned above, without the consent of the lessor in writing; or occupy, or permit, or suffer the same to be occupied for any business or purpose deemed extra hazardous on account of fire.'" The lease was signed "Traders' Bank & Trust Company, by J. Dabney Day, Cashier, and N. D. Dycus, Lessee." It was shown that Dycus was preparing to use the building to run a moving picture show, and the use of said building for such a purpose would make it extra hazardous on account of fire. The appellant claims that about noon September 30, 1908, he had a verbal agreement and understanding with Day, cashier, by which Day consented to his using said building for operating a moving picture show therein. Day practically admits this, but that about 6:30 o'clock of the same day he informed Dycus that such use of the building would not be permitted. In the meantime Dycus had been to some trouble and expense in preparing the building for use in operating the moving picture show.

Is the bank bound by this action of Day, its cashier? We think not. The appellant is a banking corporation under the laws of this state, and its charter provides that "the property or business of the corporation shall be controlled and managed by the directors," etc. This is also in effect the provision of the statutes. Article 661, Rev. St. 1895. The by-laws of the appellee in...