J. D. Young Corporation v. McClintic, 2392.

• Decision Date: 20 March 1930
• Docket Number: No. 2392.,2392.
• Citation: 26 S.W.2d 460
• Parties: J. D. YOUNG CORPORATION v. McCLINTIC et al.
• Court: Texas Court of Appeals

26 S.W.2d 460

J. D. YOUNG CORPORATION v. McCLINTIC et al.

No. 2392.

Court of Civil Appeals of Texas. El Paso.

March 20, 1930.

Appeal from District Court, Ector County; Chas. L. Klapproth, Judge.

Action by the J. D. Young Corporation against C. A. McClintic and another, in which defendants filed a cross-action. Judgment for defendants, and plaintiff appeals.

Reversed and remanded.

Paul Moss, of Odessa, for appellant.

Kimbrough & Lee, of Midland, for appellees.

PELPHREY, C. J.

On the 1st day of March, 1927, appellees entered into the following lease contract with J. D. Young:

"The State of Texas, County of Ector.

"This Contract of Lease made and entered into on this the 1st day of March, 1927, by and between C. A. McClintic and H. L. McClintic, doing business generally under the name of McClintic Brothers, as parties of the first part, and the Odessa Furniture Company wholly owned by J. D. Young, party of the second part,

"Witnesseth:

"1. That the parties of the first part are in progress of erecting a sheet steel store building 25 feet wide by 80 feet long with an annex shed 25 feet wide by 20 feet long on the back and so erected on Lot 17 Block 36 in the Original Town of Odessa, Texas, which construction will be completed sometime during the month of March, 1927.

"2. Now the parties of the first part lease to party of the second part the said store building for a period of three years, beginning on April 1, 1927, and ending on the 31st day of March, 1930.

"3. For and in consideration of the above lease, the party of the second part agrees to pay to parties of the first part such proportional amount of one month's rent as hereinafter defined and set out as is proportioned to the date on which second party actually begins occupancy of said building up to April 1st, and on April 1st to pay to the first parties the sum of $125.00 for the next ensuing month's rent, and likewise to pay $125.00 a month on the 1st day of each month to the first parties for and during the entire term of three years hereinabove provided for in this lease.

"4. It is understood between the parties hereto that this lease is taken for the use and benefit of J. D. Young Corporation now in process of formation, and party of the second part agrees and binds himself that he will not assign or sub-lease the said lease except such assignment as may be necessary to put the title into J. D. Young Corporation, without the express written consent of the parties of the first part, their heirs and assigns.

"5. Should the premises herein leased be at any time during the pendency of this lease, partially or totally destroyed by fire, then the parties of the first part shall in case of partial destruction, replace the said building in tenantable condition at the earliest possible moment thereafter, using like construction to that now in contemplation, and now being used in the construction of said building. But should the premises be totally destroyed by fire or to such extent as to render the building untenantable and not readily repaired, then the first parties shall have their option to replace the said premises, and in case they decide so to do, the rent shall abate during such time the premises are being repaired to tenantable condition.

"6. Should there at any time be any default in the payment of rent, or in any of the covenants herein contained, then it shall be lawful for parties of the first part to declare this contract cancelled and terminated, and to re-enter said premises and remove all persons therefrom without prejudice to any legal remedies which may be used for the collection of rent, all and every claim for damages, for or by reason of said re-entry being hereby expressly waived.

"7. This property is rented for a furniture business, and second party covenants and agrees that the same shall be so used, and that no improper or offensive use of the said property shall be permitted, and at the expiration of this lease that he or his successors, as contemplated herein, will quit and surrender said premises in as good condition as is consistent with reasonable use and wear thereof."

A short time thereafter, and after appellant had begun to occupy the building, an oral contract was entered into whereby an annex was added to the building and the rent increased to $140 per month.

On June 28, 1929, the J. D. Young Corporation, as plaintiff, filed this suit in the district court of Ector county, against appellees, alleging the execution of the written contract above; that under said contract appellees were to complete and deliver to appellant the said building in good, substantial, and tenantable condition; that the building and annex were not finished in the manner and in accordance with the terms of the contract, but that the roof was leaky and the rear end of the building and annex were not completed to keep the rain water from entering the store and annex; that, after the execution of the original lease, and after appellant had taken possession of the buildings, in order to get the building and annex...