Goffinet v. Broome & Baldwin

• Decision Date: 22 January 1919
• Docket Number: (No. 1450.)
• Parties: GOFFINET et al. v. BROOME & BALDWIN.
• Court: Texas Court of Appeals

208 S.W. 567

GOFFINET et al. v. BROOME & BALDWIN.

(No. 1450.)

Court of Civil Appeals of Texas. Amarillo.

January 22, 1919.

Appeal from Hall County Court; S. G. Alexander, Judge.

Action by Broome & Baldwin against F. J. Goffinet and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

T. T. Clark, of Memphis, for appellants.

Elliott & Moss, of Memphis, for appellees.

HALL, J.

This is an action by appellees, upon a written contract, executed by appellants, wherein appellants agreed to pay appellees the sum of $630 in cash, at Memphis, Tex., semiannually, as rents upon certain lands described in the contract, the first payment to be made May 1, 1914, and the second November 1, 1914, and semiannually thereafter on said dates until the expiration of the lease. The land in question had been leased by appellees from one Joe J. Mickle, with authority to assign the lease. One paragraph of the lease is as follows:

"It is understood and agreed that should the party of the first part sell during the term of this lease contract the above-described premises, and should desire to terminate this lease contract and repossess said property for those to whom he had sold, then he shall give to the party of the second part written notice of such sale, and his desire to terminate this lease contract and under these conditions the party of the second part hereby agrees to terminate this lease contract on the first day of January following the above-described request and surrender possession of said property, providing this gives nine months' notice for possession. However, in such case party of the second part shall have not less than nine months to surrender possession though it may be necessary to run over the first day of January following said notice and in such event the rent on the aforesaid property shall be paid only to the time of the expiration of said notice and surrender of said property."

The contract between appellants and appellees seems to be identical in its terms with the lease obtained from Mickle, the owner of the land, by appellees; and while, of course, appellees had no right to sell the land, appellants have acquiesced in the right of Mickle to sell and dispossess them in the event notice was given, as provided in the above-quoted paragraph of the contract. About July 16, 1915, Mickle addressed a notice to appellees, demanding possession under his contract, but no such notice was ever given to appellants. The letter notifying appellees was not a positive demand for possession. The latter states that the lands have been sold, and that the lease will terminate after nine months from its date, and proceeds:

"If, however, you prefer to cancel the lease contract at this time the rents will stop now. I will accept of said cancellation but if you require the lease can continue from nine months from this date as provided in the contract. You will kindly advise me promptly if you desire the lease to be canceled at this time or prefer waiting the expiration of the nine months, which would be April 15, 1916."

It appears that, after the sublease of the land to appellants by appellees, appellants paid one semiannual installment of the rent on May 4, 1914, and the second installment on November 3, 1914. On March 25, 1915, by written transfer, appellants assigned their lease to one J. D. Lard, who paid the first semiannual installment of rent on the contract, which entitled him to possession until November 1, 1914, but that the installment due on said last-named date was never paid, and this is the installment which is sought to be recovered in this action. Appellants answered, denying that they owed appellees any rent whatever, but that they had paid all sums due by them under the terms of the contract, while the leased premises were in their possession; that they had duly assigned the lease to one J. D. Lard, March 25, 1915, and had reserved no reversionary interest or rights in the premises; that the said Lard, the assignee, had paid the semiannual installment of rent due May 1, 1915; that said assignment was transferred with the knowledge and consent of appellees, whereby appellants were released from any liability for rents; that Joe J. Mickle, the owner of the land, had accepted J. D. Lard as a tenant; that appellees had recognized and accepted Lard as their lessee, and notified Lard under the terms of the contract of the exercise of the option to sell the premises, but had given Lard the option of retaining the premises until April 15, 1916, or of vacating at once. That appellants were never notified that appellees or Mickle had exercised the option to sell and had demanded possession; that Lard had vacated the premises prior to the first day of November, 1915, the time to which his semiannual payment of rent entitled him to possession under the contract, and that, by reason of his having been notified that he might vacate at once, he had immediately vacated and paid the rent due up to the time he delivered possession. Lard was not made a party to the suit, nor did he testify. The verdict of the jury is in favor of appellees "in the sum of $630.00, less $52.50, with interest from November 1, 1915, to date."

Appellants first assign as error the action of the court in refusing to admit in evidence the check for $630, dated May 10, 1915, with which Lard paid appellees the first semiannual installment of rent. This check should have been admitted as tending to show that appellees had acquiesced in the assignment of the lease and accepted Lard as the tenant.

The second assignment is based upon the court's action in refusing to permit Joe J. Mickle to answer the following question:

"Did you buy and ship a number of cattle from South Texas to Miami, Tex., in November, 1916, to put on the leased land now in controversy?"

There was no error in this ruling. Lard had abandoned the land prior to November, 1915, and the matter in controversy was the collection of rent alleged to have been due and payable November 1, 1915. Any intentions entertained by Mickle with reference to the use of the property in November, 1916, are wholly foreign to the controversy.

The third, fifth, sixth, and ninth assignments will be considered together. The question is whether appellants, as sublessees of appellees, Broome & Baldwin, bound by an express covenant to pay them rents, are liable for rents accruing after they had assigned the lease to Lard, with the knowledge of appellees. We find in the statement of facts a letter from Joe J. Mickle to Lard, dated July 20, 1915, as follows:

"We served notice on Messrs. Baldwin & Broome of the cancellation of the lease contract on the Roberts county ranch, which you occupied and stated to them that if they desired the contract could be canceled so as to expire at once, or any time this month; or if preferable, to terminate nine months from the date notice was given, which would make it mature April 15, 1916. I have just had a talk with Mr. Baldwin and he states that he neglected to say to you that the cancellation could take effect at this time if you so desire and I write to know if it would suit you to cancel the contract during this month or if you prefer to hold it until April 15, 1916."

Under the decision of the Supreme Court, in the case of G., C. & S. F. Ry. Co. v. Settegast et al., 79 Tex. 256, 15 S. W. 228, we think the evidence is sufficient to show that both Mickle and appellees had accepted Lard as the lessee of the land. In fact, we fail to find in the record any direct or positive evidence to the contrary. So the question then under these assignments, differently stated, is, Did the acceptance of rents from Lard and the recognition of Lard as the assignee of the lease from appellants, as a matter of law, release appellants from all liability upon their express covenant to pay rents? In Ascarete v. Pfaff, 34 Tex. Civ. App. 375, 78 S. W. 974, Judge Fly says:

"The rule is that when a lessee, with the consent of the landlord, assigns the lease for the term, the assignee becomes charged with the rent, and the original lessee is no longer liable for the rent unless it be specially agreed otherwise."

The first case cited in support of the holding is Loustaunau v. Lambert, 1 Tex. Civ. App. 434, 20 S. W. 937. The opinion in the Loustaunau Case was written by Judge Collard, who was then a member of the Third Court of Civil Appeals, and in which it is said:

"When Wilson became the owner of the lease, he assumed the obligations of the original lessee, as he was bound by law so to do; and upon the transfer of the lease to Moke, he in turn became so bound; and any fact tending to show that the landlord...