Houston Saengerbund v. Dunn

• Decision Date: 18 January 1906
• Citation: 92 S.W. 429
• Parties: HOUSTON SAENGERBUND v. DUNN.
• Court: Texas Court of Appeals

92 S.W. 429

HOUSTON SAENGERBUND v. DUNN.

Court of Civil Appeals of Texas.

January 18, 1906.

Error from District Court, Harris County; W. P. Hamblen, Judge.

Action by the Houston Saengerbund against Frank Dunn. Judgment for defendant, and plaintiff brings error. Reversed.

Rehearing denied.

Taliaferro & Wilson, for plaintiff in error. E. P. Turner, for defendant in error.

REESE, J.

This suit was instituted by the Houston Saengerbund against Frank Dunn, to recover damages alleged to have been done to the furniture of plaintiff, situated in a house rented from defendant, occasioned by the rain leaking through holes in the roof, which defendant was bound by express stipulations in the lease contract to repair. In the first count of the petition plaintiff sets up a verbal agreement between plaintiff and defendant to submit the matter of plaintiff's complaint to arbitration, and an award of the arbitrators in favor of plaintiff for $735. In the second count plaintiff sets up the contract to repair, the breach and consequent damages which are alleged to be $1,500. In the third count plaintiff alleged the lease of a part of the building, that plaintiff had no control over the roof, and that, as landlord, defendant was bound to keep the roof in repair, which had not been done. That by reason of such failure plaintiff had been damaged in the sum of $1,500 by the water leaking through holes in the roof upon the plaintiff's furniture in the leased premises. That by written contract of leasehold December 22, 1898, plaintiff had leased from Thiel for five years from January 1, 1899, a portion of a brick building in the city of Houston, the portion so leased consisting of a storeroom 25 by 50 feet on the first floor, and the upper story of the building. That said lease contract contained, among other provisions, an express stipulation on the part of the lessors "in the event of damage to the same [the leased premises], by fire or otherwise the parties of the first part [the lessors] agree and bind themselves to make any and all necessary repairs." It is alleged that on August 1, 1899, the lessors conveyed the property, the building, and grounds, to defendant, who purchased subject to plaintiff's rights under the lease, and became bound by the contract to repair. The damage is alleged to have been occasioned by defendant's having permitted the roof to become damaged, defective, and leaking, whereby, from August, 1899, to and through January, 1900, large quantities of water had run in through the roof upon the plaintiff's furniture. It is alleged that demand was made upon defendant for payment, and that in February, 1901, in order to amicably settle the matter, arbitrators were chosen by the respective parties to whom the matters of difference were submitted, and by whom an award was made, as aforesaid, which amount plaintiff sought to recover. Plaintiff further sought, in the event he failed to recover upon the award, to recover upon the original cause of action growing out of the contract to repair and breach thereof, and, failing this also, to recover upon the alleged obligation of defendant as landlord to keep the roof in repair, plaintiff being lessee of only a part of the building and having no control of the roof. Defendant answered by general demurrer and certain special exceptions, not necessary to refer to specifically, general denial and various special pleas denying specifically and in detail that he made any agreement to submit the matter to arbitration, chose any arbitrators, agreed to be bound by the award, in short that he had anything to do with the arbitration either by himself or by any authorized agent. That if any such thing as arbitration was ever contemplated by the parties, it was clearly and distinctly understood that defendant in no way recognized or admitted his liability for the damages complained of, which was one of the matters to be determined by the contemplated arbitration. It is further alleged that if plaintiff had sustained any damage as alleged, it was occasioned by the unprecedented storm of September, 1900, which was an act of God for which plaintiff was not responsible. The case was tried by a jury, and verdict and judgment were for defendant. The case is before us on writ of error sued out by plaintiff, the Houston Saengerbund.

Plaintiff in error filed a motion for a new trial on April 9th, within two days after the date of the judgment. On the first motion day thereafter, the court being engaged in other business, at the suggestion of counsel for defendant in error, the motion was passed to be taken up at any time which might be agreeable to counsel for plaintiff in error. Thereafter, on the morning of Saturday, April 23, being motion day, counsel for plaintiff in error went to the court to ascertain whether the motion would be taken up. Finding that the motion docket would not be called before 2 o'clock, p. m., it was then agreed by counsel for defendant in error that the motion might be heard on any day during the following week, when the court was at leisure. The motion was called up for disposition on the 29th, when counsel for defendant objected to the consideration of the same and filed a written motion...