First Nat. Bank v. Chapman

• Citation: 255 S.W. 807
• Decision Date: 30 June 1923
• Docket Number: (No. 10711.)
• Parties: FIRST NAT. BANK OF RULE v. CHAPMAN, District Judge, et al.
• Court: Court of Appeals of Texas

255 S.W. 807

FIRST NAT. BANK OF RULE v. CHAPMAN, District Judge, et al.

(No. 10711.)

Court of Civil Appeals of Texas. Fort Worth.

June 30, 1923.

Original application for mandamus by the First National Bank of Rule against W. R. Chapman, Judge of the District Court, and others. Application denied.

Ratliff & Ratliff, of Haskell, and H. R. Jones, of Corpus Christi, for plaintiff.

Theodore Mack, of Fort Worth, and Lon A. Brooks and J. E. Robinson, both of Anson, for defendants.

DUNKLIN, J.

The First National Bank of Rule instituted a suit against Mrs. Kate Whorton to recover the title and possession of four lots of land in the town of Rule, upon which there was situated what is known as the Rock Hotel. The hotel was leased by the plaintiff to the defendant under a written contract for the years 1921 and 1922. This suit was instituted on January 7, 1923, and was in form of trespass to try title, and it was alleged in the petition that on February 1, 1923, the defendant unlawfully entered upon the premises and ejected plaintiff therefrom and now withholds possession from the plaintiff. After the institution of the suit, plaintiff sued out a writ of sequestration, which was duly executed, but later the defendant replevied the property, giving a statutory replevy bond therefor. It was alleged in plaintiff's petition that the defendant had occupied the property under a written lease for the years 1921 and 1922; that the written lease expired January 31, 1923; that during the latter part of the year 1922 the written lease had been changed to a lease from month to month, but that the same as so changed expired January 31, 1923; that on January 9, 1923, plaintiff, through its president and board of directors, informed the defendant that beginning February 1, 1923, the rental on the building would be raised to $75 per month, and that to lease the property for one year beginning on that date she would be required to execute a written contract therefor, but that the defendant refused to execute such a contract, stating at the time that she did not expect to keep the hotel longer than February 1, 1923; and she also stated to B. L. Jackson, one of the directors of the plaintiff bank, that she would vacate the premises by that time. It was further alleged that, relying upon said promise on the part of defendant to vacate the premises, the plaintiff leased the hotel to Mrs. L. L. Wright for one year, beginning February 1, 1923, for a monthly rental of $75 per month and executed to her a written contract to that effect on the 11th day of January, 1923; that Mrs. Wright would not have leased the property from plaintiff in the absence of defendant's promise to so vacate, and plaintiff would not have leased the same to Mrs. Wright but for said promise on the part of defendant; and that by reason of those facts the defendant is estopped from claiming title or possession of said property.

In reply to plaintiff's pleadings, the defendant filed demurrers and exceptions, also a general denial and a plea of not guilty. By special answer, the defendant admitted that she had held the property for the years 1921 and 1922 by a written contract from plaintiff, but alleged that said written lease expired December 31, 1922. She also denied the alleged change in that contract for the latter part of the year 1922, but further alleged that plaintiff did grant her permission to pay the rental during the last six months of the year 1922 in monthly installments. Defendant further alleged that after the termination of the written lease on December 31, 1922, she continued in possession of the premises, and on January 26, 1923, paid to plaintiff the rent for that month, which was accepted by the plaintiff, and at the time of such acceptance plaintiff did not inform the defendant that it desired possession of the premises. Defendant further alleged that on January 9, 1923, an agreement was reached by the parties, by the terms of which plaintiff obligated itself to make certain needed improvements on the hotel building, and the defendant agreed that if said improvements were made she would continue in possession of the property and pay the plaintiff therefor a monthly rental of $75 from February 1, 1923, to December 31, 1923. Defendant further alleged that by reason of the facts above stated she had an express and also an implied lease on the hotel for the entire year of 1923.

The case was tried before a jury, to whom was submitted special issues. The issues so submitted, together with the findings of the jury thereon, are as follows:

"(1) Did plaintiff and defendant in the latter half of 1922 agree that the contract for the lease of the Rock Hotel for that year should be changed so that defendant would have the right of possession by the month? Ans. Yes.

"(2) Did defendant, Mrs. Whorton, during January, 1923, agree with Mr. Cole that if certain improvements were made on the Rock Hotel by plaintiff that defendant would pay $75 per month rent for the Rock Hotel for the year 1923? Ans. Yes.

"(3) Did defendant, Mrs. Whorton, during January, 1923, state to B. L. Jackson that she would vacate the Rock Hotel by February 1, 1923? Ans. Yes.

"(4) If you answer special issue No. 3 in the affirmative or yes, then would plaintiff have leased the Rock Hotel to Mrs. Wright without such promise to vacate on the part of the defendant? Ans. No."

After that verdict was returned, plaintiff filed a motion for judgment in its favor, and the defendant filed a motion for judgment in her favor. In each of said motions the prayer for judgment was based upon the findings by the jury, it being alleged in each motion that those findings warranted and required the rendition of a judgment in favor of the party making the motion. Both of these motions were heard and overruled, and the order expressly recited that "the court declines to enter judgment in favor of either party."

The proceeding now before this court is an application by the plaintiff, the First National Bank, for a writ of mandamus to compel Hon. W. R. Chapman, judge of the district court of Haskell county, who tried the case, to enter a judgment in favor of the plaintiff, and also to require him to set aside an order made quashing the writ of sequestration issued in the cause. The application sets out the substance of the pleadings of the parties and also the findings of the jury, and the following excerpt from the application for mandamus states the particular grounds upon which the writ is prayed for:

"Relator, with all due respect, says that the trial judge acted arbitrarily and without authority of law in refusing to render a judgment in favor of the relator in this cause on the findings of the jury in answer to special issues Nos. 1, 3 and 4, which said findings are amply and fully supported by the evidence, and are responsive to the issues presented by the pleadings."

The respondent, Hon. W. R. Chapman, has filed an answer to the petition for mandamus, in which after reciting the pleadings, the following is said:

"Accordingly respondent shows that when the cause was tried before him he without objection of the relator submitted for the determination and answer of the jury four special issues, which issues in his judgment, no objection being lodged by relator, covered the entire case. Among other issues submitted was the defense specially pleaded by the defendant below. Issue No. 2, substantially whether defendant during January, 1923, agreed with Cole, the admitted president of the bank, that if certain improvements were made on the hotel by relator that she would pay $75 per month for the hotel for the year 1923. The jury answered this issue in the affirmative. However, three other issues were submitted covering the theory entertained by the relator, the first to the effect that in the latter half of 1922 it was agreed that the contract for the hotel should be changed so that defendant would have the right of possession by the month; second (being the third issue submitted), that Mrs. Whorton during January, 1923, stated to a man named Jackson that she would vacate the hotel by February 1, 1923. (It was shown by the petition that Jackson was one of the directors of the bank); and, lastly, the fourth issue was to the effect that plaintiff would not have leased the hotel to Mrs. Wright without her (defendant's) promise to vacate.

"It thus was manifest to respondent that the answers of the jury were in hopeless and irreconcilable conflict, and under the circumstances respondent felt that no proper judgment could be entered, and he therefore entered a mistrial and refused to render judgment for either party. Respondent replied upon adjudication of our courts of last resort in the following cases: Waller v. Liles, 96 Tex. 21, 70 S. W. 17; Kahn v. Cole (Tex. Civ. App.) 227 S. W. 556; Puckett v. Davis (Tex. Civ. App.) 238 S. W. 367; Mayo v. Railway Co. (Tex. Civ. App.) 234 S. W. 938; Wisdom v. Peek (Tex. Civ. App.) 220 S. W. 210; Railway v. Wilkerson (Tex. Civ. App.) 224 S. W. 574; Wright v. Chandler (Tex. Civ. App.) 173 S. W. 1173; Stoker v. Fugitt (Tex. Civ. App.) 102 S. W....