Gray v. Tate

• Decision Date: 10 May 1923
• Docket Number: (No. 1450.)
• Citation: 251 S.W. 820
• Parties: GRAY et al. v. TATE et al.
• Court: Texas Court of Appeals

251 S.W. 820

GRAY et al. v. TATE et al.

(No. 1450.)

Court of Civil Appeals of Texas. El Paso.

May 10, 1923.

Appeal from District Court, Comanche County; J. R. McClellan, Judge.

Action by A. A. Tate against H. H. Gray and others. From judgment adverse to Gray and one other defendant, they appeal. Reversed and remanded.

Butts & Wright, of Cisco, and Callaway & Callaway, of Comanche, for appellants.

Smith & Woodruff, of Comanche, for appellees.

HIGGINS, J.

The appellee Tate and appellants entered into a written contract as follows:

"Contract and agreement made and entered into this the 30th day of October, A. D. 1919, by and between A. A. Tate, party of the first part and H. H. Gray and R. R. Little, parties of the second part.

"Party of the first part agrees to construct a building 30 by 100 feet on lot No. 9, block No. 19, in the town of Sipe Springs, Tex., in the county of Comanche. Also to build 70 feet shelving in the above-mentioned building; building to be built as soon as contractors can build same, excepting unavoidable delays, caused by inclement weather conditions, lack of building material, etc.

"Parties of the second part agree to pay to the party of the first part the sum of $125 as rent per month, and rents to begin as soon as building is completed.

"Parties of the first part agree to lease to parties of the second part the building and lot above described for three years at $125 (one hundred and twenty-five dollars) per month.

"Said rents to be due and payable the first of each month in advance."

It was the purpose of Gray & Little to use the building in conducting therein a retail hardware and furniture business, of which purpose Tate was informed at the time the contract was made. Upon the completion of the building, about January 1, 1920, Gray & Little moved into same and occupied it until the following March or April when they vacated the premises and assigned their lease to R. Y. Bracken and W. W. Byers. During the period of their occupancy Gray & Little paid the monthly rentals by depositing same in bank to Tate's credit. After the assignment Bracken and Byers in like manner paid the rentals for a time and then defaulted. Subsequently, but prior to the expiration of three years from the date of the completion of the building, Tate filed this suit against the original lessees and their assignees to recover the entire rental accrued and to accrue up to the expiration of the lease.

Gray & Little answered by general demurrer, a special exception to the effect that recovery was sought of rentals which were not due at the time the suit was filed, a general denial, a counterclaim for damages arising out of the alleged failure of Tate to construct the building in a manner suitable and necessary for the purpose for which it was intended to be used; that the roof was defective and leaked, damaging their stock in the sum of $500; that it became necessary to repair the roof which they did at an expense of $75; that Tate failed to put in the shelving and which they were obliged to put in at an expense of $90; that they were obliged to expend $75 in constructing a porch in front of the building which was necessary. Another item of damage in the sum of $1,000 was set up but need not be noticed, as the damage claimed is speculative and remote. The answer also set up the assignment to Bracken and Byers and asked for judgment over against them.

Upon the trial plaintiff dismissed as to the rentals accruing subsequent to the filing of the suit and the court peremptorily instructed the jury to find a verdict as follows: In favor of Tate against Gray and Little for the rent accruing to the date the suit was filed; in favor of Bracken...