Early v. Isaacson

• Decision Date: 24 September 1930
• Docket Number: No. 3445.,3445.
• Citation: 31 S.W.2d 515
• Parties: EARLY v. ISAACSON.
• Court: Texas Court of Appeals

31 S.W.2d 515

EARLY v. ISAACSON.

No. 3445.

Court of Civil Appeals of Texas. Amarillo.

September 24, 1930.

Rehearing Denied October 15, 1930.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Action by Allen Early against S. R. Isaacson. Judgment for defendant, and plaintiff appeals.

Reversed and rendered.

Cooper & Lumpkin, of Amarillo, for appellant.

Underwood & Strickland, of Amarillo, for appellee.

RANDOLPH, J.

Allen Early, as plaintiff, brought this suit in the district court of Potter county against Isaacson as defendant. The case was tried before a jury, and on the jury's answer to issues submitted to them, the trial court rendered judgment in favor of the defendant, and appeal has been duly taken to this court.

The plaintiff's petition sought to recover as against the defendant upon a written contract for the lease of a building situated upon the north 48 feet of lot 2 in block 88, of the Plemons addition to the town of Amarillo, which contract of lease was dated January 1, 1924, and ran for a period of five years at $523 per month. The petition further alleged that the defendant breached the covenants of said lease on the 31st day of December, 1924, and failed and refused to continue to keep said premises and to pay said rent.

That the plaintiff thereafter used said premises until about the 1st day of April, 1925, and made every effort to acquire a tenant who would occupy said premises and pay said rental agreed to be paid by defendant, and plaintiff was unable to procure a tenant who would occupy said premises and pay said rents therefor in accordance with the terms of said contract between plaintiff and defendant.

That plaintiff thereafter rented and leased said demised premises for a period of four years to the Palo Duro Furniture Company, a corporation, at and for a monthly rental of $450 per month; that said contract of lease to said company was the best contract obtainable by the plaintiff for the use and occupancy of said premises; that plaintiff thereby lost the sum of $73 per month for and during the full period of three years and nine months, and that thereby plaintiff was injured and damaged in the sum of $3,145; and that demand has been made of said defendant for the payment thereof, which he fails and refuses to do.

The defendant filed his answer, consisting of a general demurrer, general denial, and certain special pleas.

Under our view of the controlling question in the rendition of the trial court's judgment, we will only discuss the special pleading setting up such defenses as are necessary to be considered.

Defendant specially pleaded as follows:

"Further answering specially, if so required, defendant says that after his adjudication in bankruptcy, that he abandoned said premises and never asserted any right of possession, but fully surrendered said possession to the plaintiff, and that the plaintiff fully accepted said surrender and acquiesced in the abandonment and re-possessed said building, and that all parties thereby recognized that said lease agreement was fully and finally discharged, terminated and rescinded; wherefore, plaintiff cannot recover.

"Further answering specially, if so required, defendant says that the plaintiff, in renting the building to the Palo Duro Furniture Company, did not rent same for the best rent obtainable, and did not act fairly and honestly in said transaction, and that the reasonable rental value of said premises at the time of said re-rental was in excess of the said $450.00 per month, and in this connection, defendant alleges that the plaintiff, Allen Early, was desirous of engaging in the furniture business himself, and had so stated to the defendant, and that the Palo Duro Furniture Company, to which plaintiff re-rented said building in controversy, was organized by the plaintiff, he being a stockholder and owning a majority of said stock, and that said plaintiff actually managed and controlled said company, and that the rental agreement made by the said Allen Early as landlord, and Allen Early as President and Manager of the Palo Duro Furniture Company as tenant, was fraudulent, in that the monthly rental agreed upon was inadequate and insufficient and below the market value of same, and that said rental agreement was a scheme and afterthought on the part of Allen Early, seeking to hold this defendant for a purported deficiency long after the said Allen Early had taken possession and had rescinded and terminated the contract and discharged the lessee from any and all liability, and in this connection, defendant alleges that the reasonable rental value of said premises at the time of the contract between Allen Early, landlord, and the Palo Duro Furniture Company, owned, managed and controlled by Allen Early, plaintiff, was at least $523.00 per month, and that plaintiff could have obtained that much rental by the exercise of proper care and caution, or any diligent efforts whatsoever; that the plaintiff had stated shortly prior to December 31,...