Mahon v. Cotton

• Decision Date: 23 April 1896
• Citation: 35 S.W. 869
• Parties: MAHON v. COTTON.
• Court: Texas Court of Appeals

35 S.W. 869

MAHON v. COTTON.

Court of Civil Appeals of Texas.

April 23, 1896.

Appeal from Victoria county court; J. L. Dupree, Judge.

Action by R. C. Cotton against M. S. Mahon for rents. From a judgment in favor of plaintiff, defendant appeals. Reversed.

A. B. & W. M. Peticolas, for appellant. Fly & Hill, for appellee.

WILLIAMS, J.

Appellee sued appellant in the county court of Victoria county to recover rents for an hotel in Port Lavaca, Calhoun county. The residence of appellant was alleged to be in Calhoun county, and in order to fix venue in Victoria county the petition alleged that appellant had rented the property under a written contract from the 1st of July, 1893, until December 31, 1893, at a stipulated monthly rent; that by the contract appellant agreed to pay the rent in Victoria county; and that upon the expiration of that term appellant had held on for another period of six months, and had thereby become liable, under the terms of the lease, for the preceding term. The defendant pleaded his privilege to be sued in the county of his residence. The court below held the plea not to be well taken, and a judgment was rendered for plaintiff. The ground upon which the suit was held to be well brought in Victoria county was that the original lease provided for payment of the rent there, and that defendant, by holding over, renewed that contract. It is well settled that where, with the express or tacit consent of the landlord, the tenant holds over after the expiration of his term, he is deemed to hold according to the terms of the original lease. City of San Antonio v. French, 80 Tex. 575, 16 S. W. 440. But this is only an implication which arises from the conduct of the parties. The law implies, or the courts infer, a contract the terms of which are the same as those of the lease which has expired, but this is not a contract in writing. It is nothing but an implied undertaking. The exception which is relied on to the general rule requiring suits to be brought in the county of the defendant's residence exists "where a person has contracted in writing to perform an obligation in a particular county." Rev. St. art. 1198, subd. 5. The obligation here sued on was not contracted in writing, but arose by implication from the acquiescence of the parties, the former written contract being consulted simply to ascertain the terms under which the tenant continued to hold. While the new contract is, in its obligations, the same as the original, it is...