Langham's Estate v. Levy

• Decision Date: 05 December 1946
• Docket Number: No. 4380.,4380.
• Citation: 198 S.W.2d 747
• Parties: LANGHAM'S ESTATE v. LEVY.
• Court: Texas Court of Appeals

198 S.W.2d 747

LANGHAM'S ESTATE v. LEVY.

No. 4380.

Court of Civil Appeals of Texas. Beaumont.

December 5, 1946.

Rehearing Denied January 8, 1947.

Appeal from District Court, Jefferson County; W. Tom Kenna, Judge.

Suit by Sid Levy against the estate of James Biddle Langham, deceased, to recover damages for alleged breach of contract of lease. From a judgment for the plaintiff, the defendant appeals.

Judgment affirmed.

Charles S. Pipkin, of Beaumont, for appellant.

Geo. M. Sonfield, of Beaumont, for appellee.

MURRAY, Justice.

On February 15, 1936, Emmett E. Langham, Onyx I. Langham and Oliver J. Todd, were the independent executors and trustees under the will of James Biddle Langham, deceased. The said Langham Estate was then the owner of the real property situated at the corner of Fannin and Orleans Streets in the City of Beaumont. By a written lease contract, dated February 15, 1936, such executors and trustees leased a portion of the Langham building situated on such property to Sid Levy for a term of six years, beginning April 1, 1936. By the terms of the lease contract, the lessors agreed to partition off from the building situated on the property a store room for the lessee on the corner, which store room was to have approximately 20 feet frontage on Orleans Street; lessors further agreed to construct an individual front for said store on Orleans Street, and further agreed that they would "either construct new floors or place the interior of said store room in good condition and redecorate the same suitable for the purpose of a gents' furnishing goods store, and will have the said room ready for occupancy by April 1, 1926." The lease contract reads as follows:

"The State of Texas

"County of Jefferson

"This agreement entered into in duplicate on this the 15th day of February A.D. 1936, by and between Emmet E. Langham Onyx I. Langham and Oliver J. Todd acting in their capacities as independent executors and trustees under the will of James Biddle Langham deceased hereinafter styled lessors and Sid Levy hereinafter styled lessee, Witnesseth:

"First:

"That the Lessors hereby lease and the Lessee hereby binds and obligates himself to become the tenant of said lessors for a period of six (6) years from and after April 1, 1936, subject to the terms and conditions hereinafter mentioned and all that certain portion of the Langham Building, located at the intersection of Orleans and Fannin Streets in Beaumont, Texas, being that portion of said building situated on the corner at the intersection of said streets, beginning at the corner of the building at said intersection, thence in a northerly direction with the Westerly line of Orleans Street twenty (20) feet more or less to a point where the line intersecting the columns in said building paralleling Fannin Street and going through the center of each of said columns intersects the Westermost line of Orleans St.; Thence in a Westerly direction paralleling the northermost line of Fannin Street intersecting the center of the row of columns above mentioned and continuing to the Eastermost edge of the stairway leading to the Second floor; thence in a Southerly direction, parallel to the Westermost line of Orleans Street, to the Northermost line of Fannin Street; thence in an Easterly direction with the said North line of Fannin Street to the place of beginning. In event Lessors should elect to remove the stairway now leading up to the second floor of said building, then the lessee is to also have use of the space now occupied by said stairway.

"Second:

"Lessors agree to partition off from said building a store room on the corner by running a partition along the line of the row of columns above described and either along the line of the stairway or if the stairway is removed by the Lessors than the said partition will extend to the back of said building and Lessors will construct an individual front for said storeroom on Orleans Street, and will either construct new floors or place the interior of said storeroom in good condition and redecorate the same suitable for the purposes of a gents' furnishing goods store and will have the said room ready for occupancy by April 1, 1936.

"Third:

"Lessors warrant and represent that they have a good title to the said premises so leased, and they agree and bind themselves, their successors and assigns to warrant and forever defend the said title unto the lessee his heirs, executors and administrators forever.

"Fourth:

"Lessors agree to maintain the roof and walls of said building, and the Lessee agrees and binds himself to maintain the inside and front of said building and at the expiration of the lease to return the said storeroom to the lessors in as good condition as same is received by him, usual wear and tear excepted.

"Fifth:

"In case the said premises are destroyed or damaged by fire or other cause, so as to render the same untenantable during the term of this lease, no rent shall accrue from the date of such destruction until same are again ready for occupancy.

"Sixth:

"The lessee shall make no alterations in said premises without the consent of the lessors first had and obtained in writing.

"Seventh:

"It is agreed and understood that the Lessee will use the leased premises as a store room for the sale of men's and boy's Clothing and Gents' furnishings and the character of the business to be conducted in said store shall not be changed without the consent of the Lessors.

"Eighth:

"Lessee agrees to pay as rental upon the said building on the 1st day of April, 1936, and on the first day of each month thereafter for the period of twenty-four (24) months the sum of Ten ($10.00) Dollars per front foot on Orleans Street for the space above described and will further pay rentals on the 1st day of each month for the second two years of said lease, at the rate of Twelve ($12.00) Dollars per front foot per month for the space so occupied and for the last two years of said lease, will pay rental at the rate of Fourteen ($14.00) Dollars per front foot per month for the said property above described.

"Ninth:

"Lessee agrees to conduct said business in accordance with the laws of the United States, the State of Texas and the ordinances of the City of Beaumont and all valid rules and regulations prescribed by competent authority, and will not permit the said building to be used for the sale of intoxicants or for any improper or illegal purposes, and will not so use the same that the fire hazard will be increased or the insurance rate raised by reason of any such acts of the lessee. Lessee will so use the building as not to create a hazard to any persons or property in front of, or within said storeroom and assumes all responsibility for any damages which may occur to persons or property in the entrance of said storeroom, or in said room, through defects in portions of said building which he contracts to maintain.

"Tenth:

"Lessors shall not be liable for damages resulting from leaks in the roof of said building, unless written notice of the existence and approximate location of such leaks has been given to the lessors and five days time allowed for making needed repairs in such defective roof.

"Eleventh:

"Lessee shall not relet, underlet or assign the whole or any part of the leased premises without the written consent of the lessors.

"Twelfth:

"The Lessors shall have all landlord's liens and other liens or right now conferred by statute or which may be conferred by statute during the term of this lease, and also shall have a contract lien covering all of the furniture, fixtures, or other personal property which shall be placed within said building, during the term of said lease.

"Thirteenth:

"It is further provided that for a breach of the agreement to pay the rentals for more than sixty (60) days after the due date thereof, or for a breach of any of the other agreements to be performed by the lessee, that the lessors after giving ten (10) days notice of such breach on the failure of lessee to perform his said obligations, then the Lessors may at their option terminate said lease.

"Fourteenth:

"It is agreed that should the lessee ever become bankrupt or be so adjudged or make a general assignment for his creditors, that at the option of the Lessors, this lease shall become null and void.

"Witness our hands in duplicate, at Beaumont, Texas, this the 15th day of February, A.D. 1936.

                                 "Emmet E. Langham
                                 "Onyx I. Langham
                                 "Olive J. Todd
                                     "Lessors
                

"In their capacities as independent executors and trustees under the will of James Biddle Langham dec.

                                "Sid Levy
                                    "Lessee."
                

Sid Levy was at the time of the execution of said lease contract engaged in business in the Alexander building, in which location his lease contract expired May 1, 1936. The Langham building was not ready for occupancy on April 1, 1936, and Levy moved to another location in the Perl building the latter part of April or first part of May, 1936. Considerable conversation and correspondence passed between the parties at this time. The following six letters passed between the parties:

                           "Exhibit `P-3'
                                      "April 22, 1936
                "Messrs. Emmett E. Langham, Onyx I
                Land, Oliver J. Todd
                  "C/o Mr. Oliver J. Todd, Attorney at
                Law, Beaumont, Texas
                      "Re: Sid Levy vs. Estate of
                        James Biddell Langham
                              Deceased
                

"Gentlemen:

"This will serve to notify you that Mr. Levy has referred the above captioned matter to us for attention.

"As you know, under the terms of the lease contract which you entered into with Mr. Levy on February 15th of this year, you covenanted and agreed to have the leased premises ready for his occupancy on April 1, 1936. Although twenty-one days have now expired since that time arrived, Mr. Levy informs us that no action has been taken by you with respect to preparation...