Ft. Worth Fair Ass'n v. Ft. Worth Driving Club

• Decision Date: 22 May 1909
• Citation: 121 S.W. 213
• Parties: FT. WORTH FAIR ASS'N et al. v. FT. WORTH DRIVING CLUB.
• Court: Texas Court of Appeals

121 S.W. 213

FT. WORTH FAIR ASS'N et al. v. FT. WORTH DRIVING CLUB.

Court of Civil Appeals of Texas.

May 22, 1909.

Rehearing Denied June 26, 1909.

Appeal from District Court, Tarrant County; J. W. Swayne, Judge.

Action by the Ft. Worth Driving Club against the Ft. Worth Fair Association and others. From a temporary injunction, defendants appeal. Reversed, and application for writ dismissed.

See, also, following case.

Smith, Bradley, Turner & Powell and Bryan & Spoonts, for appellants. Q. T. Moreland, for appellee.

DUNKLIN, J.

This appeal is from an order by the judge of the Seventeenth judicial district granting a writ of temporary injunction restraining the Ft. Worth Fair Association and certain of its officers from permitting the sale of intoxicating liquors on the property hereinafter mentioned.

The Ft. Worth Driving Club leased from David Evans a tract of land to be used as a driving track. This lease, which was in writing and for a period of 15 years, contained a provision which expressly inhibited the sale of intoxicants on the land, and stipulated that a violation of that restriction would work a forfeiture of the lease. The driving club by written lease sublet the premises to the Ft. Worth Fair Association for two weeks each year during a period of five years, terminating before the expiration of the period covered by the original lease. The sublease contract contained no restriction against the sale of intoxicating liquors on the premises, and in that lease no reference was made to any of the terms of the original lease in favor of the driving club, although the fair association had notice at the time of the restriction in the original lease. In its petition filed in the trial court the driving club alleged that the sublease was made with the consent of Evans. The driving track was used as a race track by the fair association, and the defendant gave public horse races upon it each year during the weeks covered by its lease. Upon these occasions, for the three years last past, intoxicating liquors were sold upon the grounds under a special permit from David Evans, who received a money consideration therefor additional to the rents provided in the original lease. But David Evans has since sold the property to R. G. Johnson, who refuses to grant a further permit so to do, and who has notified the driving club that its lease will be forfeited if such sales are further permitted.

It is well settled by the authorities that a subtenant is...