London Terrace v. McAlister

• Decision Date: 31 May 1944
• Docket Number: No. A-129.,A-129.
• Parties: LONDON TERRACE, Inc., v. McALISTER.
• Court: Texas Supreme Court

180 S.W.2d 619

LONDON TERRACE, Inc., v. McALISTER.

No. A-129.

Supreme Court of Texas.

May 31, 1944.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by London Terrace, Incorporated, against Raymond W. McAlister to recover rent allegedly due under a lease, wherein defendant brought a cross-action. From a judgment of the Court of Civil Appeals, 179 S.W.2d 515, reversing and remanding a judgment for defendant, plaintiff brings error.

Judgments of the district court and of the Court of Civil Appeals reversed and judgment rendered for plaintiff.

Bonney & Paxton, M. M. Wade, and W. R. Sessions, all of Dallas, for plaintiff in error.

Albert S. Reagan, of Dallas, for defendant in error.

BREWSTER, Commissioner.

By written instrument Raymond W. McAlister, respondent, leased from petitioner, London Terrace, Inc., a penthouse in New York City for two years at a monthly rental of $220. After fifteen months respondent quit the premises and refused to make further payments, claiming that petitioner had failed to keep the apartment properly heated. Respondent having moved to Dallas, petitioner sued him there for $1072.56, the amount due under the contract less rents paid by another tenant during part of the unexpired term.

Respondent answered that before the contract was executed he told petitioner his wife's health was such that her apartment had to have proper heating day and night; that petitioner represented that steam heat would always be available in the penthouse; that when the contract was presented to him later for signature petitioner stated it was unnecessary for him to read it as it contained nothing that would affect the landlord's obligation to furnish continuous heating service; that this representation was false in that the contract bound petitioner to furnish heat only "at reasonable hours during the cold seasons" and provided that failure to furnish it should not abate the rent unless caused by petitioner's gross negligence; that petitioner turned off the heat both by day and by night "in bitterly cold weather," so that his wife's health became further impaired, compelling them to abandon the apartment; that, therefore, the rent sued for had been abated. By cross action he asked $2,000 damages for the alleged aggravated illness of his wife.

The jury found (1) that before the contract was executed petitioner agreed that steam heat would be available to keep the apartment heated when necessary; (2) that respondent relied on this representation; (3) that heat was not so furnished; (4) that when the contract was executed petitioner represented to respondent that it was unnecessary to read it as it contained nothing that would affect the oral agreement; and (5) that respondent relied on this representation in signing the contract.

Petitioner moved both for an instructed verdict and for judgment non obstante veredicto. The judgment was that petitioner take nothing and that respondent take nothing on his cross action. Its motion for a new trial being overruled, petitioner appealed to the court of civil appeals.

Respondent filed no exceptions to the court's charge, requested no issues other than the five submitted, made no complaint at the trial court's judgment, offered no cross assignment and made no appeal. In his brief in the court of civil appeals, he urged the correctness of the trial court's judgment, admitting that his cross action had been abandoned.

The court of civil appeals held that the alleged verbal obligation of the landlord to keep the apartment properly heated was no different from its duty to furnish heat under the lease contract; hence there was no fraud, because the representation that the contract contained nothing limiting the obligation already orally made was true. It held, however, that the evidence was sufficient to have sustained a jury finding that petitioner failed adequately to heat the apartment as required by the lease contract; but that the judgment could not be sustained on that ground because respondent had relied exclusively on his allegations of fraud and had not alleged any breach of the contract. Then the majority, Chief Justice Bond dissenting, decided that the cause should be remanded "without prejudice to the right of the defendant to amend and allege breach of the heating provision of the written contract." Pointing out that respondent defended on breach of both the verbal and written contract and that the trial court refused to submit any issue to the jury as to any breach of the written contract and expressly decreed that respondent take nothing, Judge Bond contended that the judgment became final as to that issue, in the absence of an appeal or assignment of error. 179 S.W.2d 515, 516, 517.

Respondent sought a rehearing on the judgment of the court of civil appeals, which was overruled, but he made no application for a writ of error.

The case is before us on petitioner's point of error that the judgment of the court of civil appeals should have been to render the cause rather than to remand it for another trial. Our appellate courts exercise a generous discretion in remanding cases after reversal. With respect to the question before us, the power of the court of civil appeals is defined by Rule 434, Texas Rules of Civil Procedure, as being "to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial." Rule 505, ibid., prescribes that this court shall "either affirm the judgment, or reverse and render such judgment as the Court of Civil Appeals should have rendered, or reverse the judgment and remand the case to the lower court, if it shall appear that the justice of the case demands another trial." Before the adoption of these rules we had Arts. 1856 and 1771, R. S.1925...