Eckstine v. Webb Walker Jewelry Co.

• Court: Texas Court of Appeals
• Writing for the Court: Speer
• Citation: Eckstine v. Webb Walker Jewelry Co., 178 S.W.2d 532 (Tex. App. 1944)
• Decision Date: 11 February 1944
• Docket Number: No. 14610.,14610.
• Petition History: writ ref'd w.o.m.
• Parties: ECKSTINE v. WEBB WALKER JEWELRY CO.

Page 532

178 S.W.2d 532

ECKSTINE v. WEBB WALKER JEWELRY CO.

No. 14610.

Court of Civil Appeals of Texas. Fort Worth.

February 11, 1944.

Rehearing Denied March 10, 1944.

Appeal from District Court, Tarrant County; A. J. Power, Judge.

Action by Webb Walker Jewelry Company against Sam Eckstine seeking to enjoin defendant from removing improvements placed on lots rented from plaintiff. Judgment granting the injunction, and defendant appeals.

Reversed and rendered.

W. E. Myres, of Fort Worth, for appellant.

Rawlings, Sayers & Scurlock, of Fort Worth, for appellee.

SPEER, Justice.

From an order, after hearing, a temporary injunction was issued by a district court of Tarrant County in favor of Webb Walker Jewelry Company, a corporation, to which we shall refer as plaintiff, or lessor, against Sam Eckstine, to whom we shall refer as defendant, or lessee. Eckstine has appealed.

Plaintiff's pleadings allege that on January 14, 1938, its predecessor in title, by written contract leased to defendant, for a period of five years ending with January 15, 1943, a certain lot about 100 feet square, in the City of Fort Worth, describing the lot, for a rental of $7500 payable $125 per month; the first payment being due on January 15, 1938, and a like amount on the 15th day of each succeeding month during the life of the lease. That defendant paid the rentals during the contract period and continued thereafter to use and occupy the lot and pay the rentals during 1943, until on August 15, 1943, he failed to pay the rental installment due at that time; that by reason of so holding over with the consent of plaintiff, as a matter of law, there was an implied contract of rental for one year beginning with January 15, 1943, upon the same terms, as the original five-year contract. It was alleged that by a provision in the written contract, defendant was privileged to erect improvements on the premises, but in the event lessor exercised an option to sell the property and thereby obtain possession of it during the term of the lease, the defendant (lessee) obligated himself to sell to lessor all such improvements at a discount of ten per cent from their original cost, but if lessor elected not to purchase the improvements, then lessee was given permission to remove them. It is averred that plaintiff has not exercised the option to terminate the lease as provided in the contract, and that the improvements belong to him; that defendant is claiming said improvements and threatens to remove them from the lot. Plaintiff's prayer was for recovery of its damages, general and special relief, and for injunction restraining defendant from removing the improvements off the lot.

Defendant answered with general denial and specially in effect, admitting the condition or option in the contract pleaded by plaintiff as made when the original leasing took place, but that under the terms of the contract, title to the improvements placed on the property was to remain in him unless the option provided for was exercised by plaintiff and that since he owned the improvements he had the right to remove them, and he should not be enjoined from doing so.

At a hearing of the issues, the trial court construed the contract as contended by plaintiff and issued a temporary injunction enjoining defendant from removing the improvements, "until the further order of said court". It is from this order defendant has appealed.

The provision in the contract upon which both parties rely is as follows:

"It is agreed that should the lessor have an offer for the sale or trade of this property which he desires to consummate, by giving lessee ninety days written notice, lessee shall quit the premises and the remaining portion of the unexpired lease shall be terminated at the expiration of said ninety days period, and that total rentals shall be paid only in proportion to the time that the premises are occupied."

"It is further provided that lessee shall have the consent of lessor to erect improvements on the premises above described, and in the event lessor exercises the option to obtain possession of the premises, lessee agrees to, at the option of lessor, sell to lessor all improvements erected at the cost to lessee, less ten per cent. Should lessor not elect to purchase the improvements referred to, lessor hereby grants permission to lessee to remove said improvements without let or hindrance, and waives any claim to title which he, lessor, may have on the improvements."

The undisputed testimony shows that the leased premises consisted of a lot 100×100 feet upon which had previously been a building, but had been torn down and removed, leaving the bare lot upon which there was a concrete surface; that in that concrete surface were some holes, extending through the concrete, in which posts or columns had extended. Defendant expected to and did use the premises at all times as an automobile parking lot; shortly after the lease contract was executed defendant erected a shed 36×100 feet, constructed of galvanized iron covering, supported by four inch iron pipes or columns with cross arms of pipes to support the roof. Defendant first testified that he put the columns on top of the cement surface, but further said he did not break the cement surface at any place; that he partially cleaned out the holes in the cement where previous columns had existed and put his columns or pipe supports therein and poured concrete in the holes around the posts.

President of plaintiff corporation testified in effect that he knew the contents of the lease contract when his corporation took over the property and asked the manager of the original lessor to continue to collect the rents and turn them over to plaintiff, and that this was done throughout the lease contract and during the period of months during 1943 after the expiration of the initial lease; that shortly after the expiration of the contract, plaintiff had the agent to request of lessee defendant to pay more rent; that defendant declined to do so and said he did not want to keep the premises any longer under previous arrangements and the price being paid. Plaintiff told defendant in the latter part of August 1943, he wanted possession of the premises with the view of re-renting them. Defendant said he would remove the improvements and give possession at once. Then it was that plaintiff claimed the improvements and procured the original restraining order against removal of the improvements by defendant.

There is no serious contention made by plaintiff that all rentals had not been paid up to October 1, 1943, in fact it was stated by the president of plaintiff, to the court that "it might be that the rent is paid up until the fifteenth of next month" (meaning October 15, 1943).

In the judgment entered the court found the erection by defendant of the sheds and further recited: they were "of a permanent nature consisting of galvanized iron sheds which could not be removed without inflicting damage upon the freehold; and said improvements are appropriate and useful for an open market, parking station and other types of business which do not require a structure enclosed by walls." The judgment further recites: "Under such circumstances, the court finds that it was the intention of the parties making the lease contract that the defendant, Sam Eckstine, should be permitted to remove the improvements referred to only in the event the lessor exercised the option provided for to terminate the lease; and thereupon elected not to purchase the improvements from the lessee, `at cost * * * less ten per cent (10%)' and therefore it was not intended or agreed that the defendant should be permitted to remove said improvements of a permanent nature from the premises after the expiration of said lease contract."

All five of the appealing defendant's points of error relate to the construction given by the court to the contract under the testimony. Plaintiff counters with much earnestness that the judgment of the court is correct.

We have concluded that the court erred in his construction of the contract and in the application of the law to the undisputed facts.

As a background for this opinion we should here observe some of the rules of existing law which will be read into the contract, when the parties did not stipulate...