Fant v. Miller, 6422.
Decision Date | 24 February 1949 |
Docket Number | No. 6422.,6422. |
Citation | 218 S.W.2d 901 |
Parties | FANT v. MILLER. |
Court | Texas Court of Appeals |
Appeal from District Court, Cass County; E. Harold Beck, Judge.
Suit by R. P. Fant against D. S. Miller for cancellation of a lease. From an adverse judgment, plaintiff appeals.
Judgment affirmed.
S. I. Cornett, of Linden, for appellant.
Vera P. Street, of Terrell, for appellee.
This is a suit for cancellation of a lease contract between R. P. Fant, appellant, and D. S. Miller, appellee, for the recovery of the leased premises by R. P. Fant, the owner thereof, by reason of the alleged breach of the rental contract in certain respects. The case was tried to the court without the intervention of a jury and from a judgment entered in favor of Miller by the court below R. P. Fant has perfected this appeal.
On September 4, 1945, R. P. Fant, the owner of the George Hotel in Linden, Texas, entered into a contract with D. S. Miller under the terms of which Fant leased the George Hotel and its contents to Miller for a period of five years for the sum of $250.00 rental per month, the first payment to be paid December 4, 1945, and each successive monthly rental payment to be made on or before the 4th day of each month thereafter. The contract provided that upon a failure on the part of the lessee to pay any monthly rental on its due date, on or before the 4th day of each month, the lessor had the right to declare the contract forfeited and to terminate it without delay. On the 25th day of February, 1948, R. P. Fant sued D. S. Miller, seeking a cancellation of the rental contract in question on the ground that Miller had failed to pay the monthly rental in cash on the 4th day of February, 1948, as well as for his failure to tender the rental due in cash on the 4th day of March and April. As a further ground of relief Fant alleged in his pleadings that Miller, the lessee, failed to keep the premises in a tenantable condition as required by the terms of the lease contract. Miller paid the rent in advance on December 4, 1945, and at the same time a good faith deposit was made with Fant, both items being paid by personal check. Thereafter, for twenty-four consecutive months, to January 4, 1948, the checks for the rent were mailed to Fant, which were accepted as payments for the rent due; then, on February 4, 1948, the check due on that date was placed in the mail and was received by Fant on the next day. The following day, February 6, 1948, the attorney for R. P. Fant wrote a letter to Miller as follows:
"February 6th, 1948 Mr. D. S. Miller Logansport, La
Dear Mr. Miller:
The check forwarded by you in favor of R. P. Fant, for the rental due him for use of the George Hotel for period beginning February 4th, 1948, and ending March 3rd, 1948, in the sum of $250.00, postmarked at Logansport, Louisiana, at 6 P. M. February 4th, has reached Mr. Fant at Post Office here on the 5th day of February, 1948. This, as his attorney he has left with me with request that I mail it back to you, as not being in accord with the lease contract which provides that the monthly rentals shall be paid to him on the 4th day of each month. Then again the tender of a personal check is not, as a matter of law, we think equivalent to a tender of currency.
For the above reason, and the further reason that the covenants in said lease providing for carpeting the floors of the hotel have not been complied with, Mr. Fant has determined to forfeit this lease, and you are so notified. If you do not care to yield up the possession peaceably, then I am instructed to file suit in his behalf for a forfeiture of such lease contract between himself and you, a duplicate copy of which was delivered to you at the time of the execution thereof, the original of which has been recorded in the County Clerk's office here in...
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