Hoover v. Wukasch, 10262

• Decision Date: 12 January 1955
• Docket Number: No. 10262,10262
• Citation: 274 S.W.2d 458
• Parties: R. C. HOOVER, Appellant, v. C. G. WUKASCH et al., Appellees.
• Court: Texas Court of Appeals

Page 458

274 S.W.2d 458

R. C. HOOVER, Appellant, v. C. G. WUKASCH et al., Appellees.

No. 10262.

Court of Civil Appeals of Texas, Austin.

Jan. 12, 1955.

F. L. Kuykendall, Austin, for appellant.

Louis Scott Wilkerson, Austin, for appellee.

ARCHER, Chief Justice.

This is an appeal from an order of the trial court sustaining plaintiff's motion for Summary Judgment.

The appeal is based on three points assigned as error and are as follows:

'1. The trial court erred in holding that, under the contract, there was no obligation on the part of lessors to repair the roof of the building until lessee had given lessors written notice and lessors had had a reasonable time within which to repair said roof.

'2. Since the contract to lease was prepared by lessors, and since its terms are ambiguous and uncertain as to the duty of lessors to repair said roof, the trial court erred in resolving such ambiguity and doubt in favor of the lessor-the rule in such instances being that ambiguities and doubts will be resolved against the lessors and in favor of the lessee.

'3. Since the pleadings alleged facts which, if true, justified the defendant in vacating the premises because of the leaky roof, or at least justified a diminution in rental value of the premises because of the failure of lessors to keep the roof in repair after even verbal notification, the trial court erred in granting plaintiffs' motion for summary judgment.'

The suit was instituted by the appellee as landlord against appellant as tenant for the recovery of rents accruing on a rental covenant contained in a contract to lease. The contract was executed on July 1, 1948 and was a lease of certain business property in Austin, Texas from appellee and her then husband, now deceased, to appellant for a term of five years, terminating August 31, 1953. The total rent covenanted to be paid by the tenant was agreed to be $23,040, payable in specified monthly installments. The tenant occupied the premises for more than two and one half years and paid $11,840, and failed to pay any of the balance.

On June 1, 1951, the tenant, appellant herein, vacated the premises.

Appellant originally took the position that the contract was completely void at its inception and constituted no enforcible obligation and obtained a Summary Judgment to such effect. The case was appealed and this Court rendered its opinion reported in Wukasch v. Hoover, 247 S.W.2d 593, reversing and remanding the cause. Our Supreme Court in Hoover v. Wukasch, Tex., 254 S.W.2d 507, rendered its decision affirming our judgment and reference is made to both of these opinions for a discussion and determination of the subject matter.

Since it has been held that the contract was operative as a valid and enforcible contract to lease, and imposed on the tenant an executory obligation to pay the rental agreed on, the tenant is liable therefor.

The appellant seeks an avoidance from further performance of the rent covenant because of an alleged failure by appellee to perform an alleged covenant to repair the roof on the premises, which omission appellant asserts rendered the premises untenantable and alternatively that he should at least be entitled to an 'offset or credit,' because of the leaky condition of the roof.

These affirmative contentions of the tenant presented a law question of whether the contract contained a landlord's covenant to repair the roof and whether, in the light of the admitted facts that no written notice of necessity for...