Kleber v. Pacific Ave. Garage

• Decision Date: 31 March 1934
• Docket Number: No. 11447.,11447.
• Citation: 70 S.W.2d 812
• Parties: KLEBER et al. v. PACIFIC AVE. GARAGE.
• Court: Texas Court of Appeals

70 S.W.2d 812

KLEBER et al. v. PACIFIC AVE. GARAGE.

No. 11447.

Court of Civil Appeals of Texas. Dallas.

March 31, 1934.

Rehearing Denied May 5, 1934.

Appeal from District Court, Dallas County; Walter L. Wray, Judge.

Action by the Pacific Avenue Garage against F. M. Kleber and another. Judgment for plaintiff, and defendants appeal.

Reformed and affirmed.

Martin B. Winfrey and Philip I. Palmer, both of Dallas, for appellants.

R. G. Storey and E. Taylor Armstrong, both of Dallas, for appellee.

LOONEY, Justice.

Appellee, Pacific Avenue Garage, a corporation, sued F. M. and W. B. Kleber, appellants, to recover damages for the breach of a verbal lease of a vacant lot in the city of Dallas.

Appellee alleged, in substance, that, on or about June 1, 1926, it leased from appellants for a period of one year, the lot in question (expiration date, on or about June 1, 1927) to be used in the business of storing, washing, and greasing automobiles, and equipped the same for such uses at a cost of $1,000, by placing thereon a corrugated iron shed, graveling the ground, erecting a cement wash rack, and making sewerage connections; that on February 16, 1927, appellee was ejected under a writ of sequestration sued out in an action of trespass to try title by appellants to recover possession of the premises; that the improvements placed on the lot were damaged $250, by reason of the termination of the lease; and that, as a result of the eviction, appellee was deprived of profits from its business of washing, greasing, and storing cars, $2,500, making a total of $2,750 actual damages sought.

Appellants answered by general denial and specially pleaded that the lot was not leased for a year, but that appellants simply gave appellee permission to occupy same from month to month at $50 per month, and that, having leased the lot to another party, demanded of appellee possession thereof, which, being refused, appellants instituted an action of trespass to try title, and dispossessed appellee under a writ of sequestration; that, if appellee was damaged as alleged, it was through no fault of appellants, but could have been avoided had appellee complied with the agreement.

Appellee's right to recover being dependent upon proof that the lot was leased for a year, the court submitted the case on that theory; the issues and answers of the jury are these:

"No. 1. Do you find from a preponderance of the evidence that the defendant leased to the plaintiff the property described in plaintiff's petition for a term of one year beginning June 1, 1926? Answer `yes' or `no.' Answer: `Yes.'

"If you have answered the foregoing special issue `No,' you need not answer the following special issues, but if you have answered the foregoing special issues `Yes,' then you will please answer the following special issues:

"No. 2. What amount, if any, do you find from a preponderance of the testimony the plaintiff was damaged by the removal of the improvements from the property before the expiration of said lease? Answer in dollars and cents, if any you find. Answer: $300.00 (Three Hundred Dollars).

"No. 3. What amount, if any, do you find from a preponderance of the testimony the plaintiff was damaged in the loss of profits from washing and greasing cars? Answer in dollars and cents, if any you find. Answer: $1,000.00 (One Thousand Dollars)."

Based on these answers, judgment was rendered for appellee for $1,300, from which appellants appealed.

Although the issues are few and simple appellants urged numerous objections to the charge, which were overruled; requested a number of special issues, these were refused; and assigned numerous errors. However, their position on appeal, as revealed in the concluding paragraph of the brief, may be summarized as follows: That the court erred in refusing to instruct a verdict in their favor, because of a fatal variance between the allegations and proof; that they were deprived of the benefit of defenses in mitigation of damages, by the refusal of requested issues raised by the evidence; that the court erred in refusing to define the phrase "preponderance of the evidence," used in the charge; that the verdict of the jury was an arbitrary assessment, without foundation in fact or in law; and that by reason of various other errors appellants were deprived of a fair trial.

Appellants' contention that there is a fatal variance between the allegations and proof is based upon the fact that appellee alleged that heretofore, to wit, on or about the 1st day of June, A. D. 1926, defendants entered into a lease contract with plaintiff, to expire one year after date, the expiration date alleged being on or about June 1, 1927, etc.; whereas the evidence showed that the agreement was entered into in March or April, 1926, appellee to equip the lot for use, the lease period to begin when the improvements were completed, alleged as on or about June 1, 1926.

The verbal lease for a year, to begin in the future, is not objectionable (Bateman v. Maddox, 86 Tex. 546, 26 S. W. 51; 20 Tex. Jur. § 47, p. 259), and we fail to find a material or misleading variance...