Jackson v. Knight

• Decision Date: 18 April 1917
• Docket Number: (No. 1154.)
• Citation: 194 S.W. 844
• Parties: JACKSON v. KNIGHT.
• Court: Texas Court of Appeals

194 S.W. 844

JACKSON v. KNIGHT.

(No. 1154.)

Court of Civil Appeals of Texas. Amarillo.

April 18, 1917.

Rehearing Denied May 9, 1917.

Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.

Action by J. L. Jackson against C. C. Knight. Plaintiff appeals from judgment for defendant and from order refusing to direct a verdict and refusing new trial. Reversed and rendered.

A. A. Hughes, of Wichita Falls, for appellant. Martin, Bullington, Boone & Humphrey, of Wichita Falls, for appellee.

HUFF, C. J.

On the 27th day of June, 1913, J. L. Jackson and Simmons Bros. entered into a written lease contract to a certain piece of property in the city of Wichita Falls, known as the Hearn Café, for two years and eight months from the 1st day of February, 1914, by the terms of which J. L. Jackson, as lessor, leased to Simmons Bros. the property for the term named; the lessees agreeing to pay for the period $4,000, in 32 monthly payments of $125 each, payable on the 1st of each month. It was stipulated in the lease in case of default of any of the covenants the lessor should have the right to forfeit the lease, or the lessor might relet the premises for the remainder of the term for the account of the lessee for the best rent he could obtain, and the lessee should make good any deficiency. It is also stipulated the lessee should not assign the lease or sublet the premises or any part thereof without the consent of the lessor in writing. One of the brothers of the partnership of Simmons Bros. withdrew from the firm, and the business was carried on by L. J. Simmons, on the premises and under the lease, to which the lessor Jackson consented. Afterwards, on the 17th day of August, 1914, L. J. Simmons and appellee, C. C. Knight, negotiated a trade and entered into a written contract, by the terms of which Knight sold to L. J. Simmons a section of land in Dallam county, Tex., and agreed to convey the land by a sufficient warranty deed, and to furnish an abstract of title thereto. In consideration for the conveyance, Simmons agreed to assume $2,100 indebtedness against the land and execute four notes, one for $500 and three for $1,000 each, due respectively August 17, 1915, August 1, 1917, 1918, and 1919, and, as a further consideration for the conveyance, the contract recites that on that day Simmons sold to Knight all the furniture and fixtures then located in the City Café and the Hearn Café, which sale was to be made by the written bill of sale, executed on that day; Knight to assume $510 against a piano therein situated. The fourth clause of the contract is:

"First party (Knight) shall give possession of said land to second party (Simmons) on January 1, 1915, and second party hereby agrees to give possession of said furniture and fixtures and the rooms in which same are located to first party on this date, with a transfer of the leases now held by second party on the rooms in which said furniture and fixtures are now located, and hereby guarantees that his lessor will consent and agree to said transfer of said lease."

This contract is signed by Knight and Simmons as first and second party, respectively, on the 17th of August, 1914. The evidence shows that Knight, on that day, took possession of the leased property and employed Simmons to run the restaurant for him therein, and that Simmons remained as such employé until September 8th, following, when he left. On the day the contract was made, Simmons went to see Jackson and informed him of the agreement with Knight, and that Knight had and would agree to take the lease. Jackson notified Simmons that he would agree to accept Knight, but said Knight would have to come over and sign the lease. The café and building were turned over to Knight, together with the lease contract. These instruments Knight took and thereafter paid two months' rent of $125 each, and afterwards sold the furniture and fixtures to Bowen and placed him in possession of the property. Bowen went to see Jackson, and told him he had bought the property and lease, and asked him if he would accept him as his tenant. Jackson told him that he would not, and thereupon wrote to Knight that he had accepted him (Knight) in lieu of Simmons, provided he carried out the contract, and that he was informed he had done so, and since that time he was informed Knight had transferred the lease to another and that he (Jackson) was unwilling to agree thereto unless Knight would guarantee payment of the rents and performance of the other terms of the lease. Bowen paid the rents for two months, and Jackson received it on Knight's account. Afterwards it appears by suit and by agreement, the fixtures were sold to pay the rents then due, and that they sold for the sum of $375, which Jackson applied on the lease for the months of December, 1914, and January and February, 1915. Thereafter on May 1, 1915, the building was leased for the rest of the term by Jackson, for $75 per month; this being the best terms he could obtain therefor. Knight and Bowen abandoned the premises, and Jackson acted under the terms of the lease contract to relet on account of the lessee for the unexpired term. The evidence by Knight shows he was in possession of the lease turned over to him by Simmons, and that he wrote out a transfer of the lease to Bowen and procured Simmons to sign the transfer to Bowen. There was never any formal written transfer of the lease from Simmons to Knight further than as set out in the written contract executed by them in the trade of August 17, 1914. The effect of Knight's testimony and his answer to the petition of appellant is that he...