Land v. Johnson

• Citation: 189 S.W. 337
• Decision Date: 26 October 1916
• Docket Number: (No. 5714.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: LAND v. JOHNSON.
• Court: Court of Appeals of Texas

189 S.W. 337

LAND v. JOHNSON.

(No. 5714.)^*

Court of Civil Appeals of Texas. San Antonio.

October 26, 1916.

Rehearing Denied November 22, 1916.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Suit by William Uehlinger and Annie Uehlinger against Charles Land and another, wherein Anna Uehlinger, under the name of Annie Uehlinger Johnson, filed an amended petition. From a judgment for plaintiff Anna Uehlinger Johnson, defendant Land appeals. Judgment affirmed.

H. D. McDonald and E. P. Scott, both of Corpus Christi, for appellant. Pope & Sutherland, G. R. Scott, Boone & Pope, and Gowan Jones, all of Corpus Christi, for appellee.

MOURSUND, J.

William Uehlinger and wife, Annie Uehlinger, on May 11, 1912, sued Charles Land and Mrs. E. P. Cooper, in trespass to try title, for certain real estate in Corpus Christi. At the same time plaintiff sued out a writ of sequestration, upon an affidavit made by plaintiff Annie Uehlinger. The sequestration, upon motion of defendant Land, was quashed on March 13, 1913. On November 2, 1915, said Annie Uehlinger, under the name of Annie Uehlinger Johnson, filed her first amended original petition, having obtained permission to prosecute the suit without being joined by B. O. Johnson, who married her and abandoned her after she was divorced from Uehlinger. She sought to recover rents in the sum of $3,600 per annum, and also $7,200 for every year since the institution of the suit for rents she would have received from a building she was prevented from erecting because of Land's refusal to surrender possession of the premises.

Land pleaded that he had leased the premises from J. W. Stacey, who had sold such premises and assigned the lease to Mrs. Annie Uehlinger Johnson, and that he recognized her as his landlord thereafter; that the lease by its terms was to terminate December 31, 1913; that about November 20, 1911, the kitchen and bake oven on said premises were destroyed by fire; that such fire did not so damage the premises as to make them unfit for occupancy, and under the terms of the lease the landlord should cause the damages to be repaired forthwith; that Mrs. Johnson, although requested to promptly repair the buildings, refused to do so, whereupon defendant Land, at his own expense, in the sum of $1,400, made the repairs reasonably necessary to place the building in a "usable and tenantable" condition for the uses and purposes for which he had rented the same. He prayed for judgment for such sum of $1,400, and further reconvened for damages alleged to have been caused by the issuance of the writ of sequestration, which he alleged was wrongfully issued. He claimed actual damages in the sum of $250 for a period of nine days during which the sheriff had possession of the premises; also actual damages in the sum of $920 paid out for premiums on the replevy bond given by him; also for $10,000 exemplary damages.

Mrs. Johnson, by supplemental petition, denied that the lease was of the tenor and effect pleaded by defendant Land, and alleged:

"That said lease, among other things, provided that the rental thereof should be payable the 1st day of each and every month, $121.30 per month for each month from date thereof during the year 1910, $141.30 per month each month during the year 1911, $156.30 each month during the year 1912, and $166.30 each month during the year 1913, and that said rent should be paid at the City National Bank of Corpus Christi, Tex., in advance as the same should fall due, and that default for ten days in the payment of any installment should cause said defaulted installment to bear interest at the rate of 10 per cent. per annum from date of such default until paid, and that in case of fire the lessee, the said Chas. Land, defendant herein, should give immediate notice to the lessor, who should thereupon cause the damages to be repaired forthwith, but, if the premises were deemed by the lessor to be so damaged as to be unfit for occupancy, or if the lessor should decide not to rebuild, the lease should cease, and the rent should be paid up to the time of the fire, and that, in case of default in any of the aforesaid covenants or in the payment of any installment of rent, the lessor had the right to declare said lease forfeited; that a fire occurred on said premises on or about the 20th day of November, 1911, and badly damaged and injured the building and improvements of said property, and plaintiff, exercising her right, privilege, and options under said lease, declined to repair said building, and declared said lease terminated, and so notified defendant."

She further alleged that Land refused to pay the rent as it became due, and failed to surrender the premises, although he had agreed to do so, whereupon she had perfected arrangements to erect a large fireproof building, which would have brought her a net income of $7,200 per annum. She denied all allegations to the effect that the writ of sequestration had been wrongfully issued, and that Land had suffered damages by reason of its issuance.

Land replied by supplemental answer, describing the damages to the premises, and alleging:

"That such damages were not of such extent as to justify plaintiff in fairness, reason, and good faith to defendant in declaring said lease forfeited, and the defendant says such refusal of plaintiff to repair such damages, and her said attempted forfeiture of the lease, was done capriciously and maliciously without just cause or reason, and for the purpose of injuring this defendant and serving her own selfish purposes."

A verdict was returned in favor of plaintiff for the title and possession of the premises, and for $200 per month for 24 months, with interest at 6 per cent. Judgment was rendered in accordance with the verdict.

By the first assignment of error complaint is made of the refusal to give special charges numbered from 1 to 14, inclusive, and of the failure of the court to submit defendant's claims for repairs and for actual and exemplary damages for suing out the writ of sequestration. Appellee objects to the consideration of such assignment on the ground that appellant has therein joined several separate and distinct matters in violation of the rules. This objection must be sustained. Nelson v. Boggs, 177 S. W. 1005; Foster v. Bennett, 178 S. W. 1001; Rainey v. Old, 180 S. W. 923; Browder v. School District, 172 S. W. 152; McConnon v. McCormick, 179 S. W. 275; Killman v. Young, 171 S. W. 1065.

By the second assignment complaint is made of the first paragraph of the charge, which reads as follows:

"As to the lease contract in evidence, you are instructed that under the terms thereof, in case of fire, and damage by reason thereof to said...