Marathon Oil Co. v. Edwards, 4618.

• Citation: 96 S.W.2d 551
• Decision Date: 01 June 1936
• Docket Number: No. 4618.,4618.
• Parties: MARATHON OIL CO. et al. v. EDWARDS et al.
• Court: Court of Appeals of Texas

96 S.W.2d 551

MARATHON OIL CO. et al. v. EDWARDS et al.

No. 4618.

Court of Civil Appeals of Texas. Amarillo.

June 1, 1936.

Rehearing Denied September 7, 1936.

Appeal from District Court, Lamb County; R. C. Joiner, Judge.

Suit by J. Arthur Edwards and wife against the Marathon Oil Company and others. From a judgment for plaintiffs, defendants appeal.

Affirmed.

R. C. Gwilliam, of Tulsa, Okl., and Hiner & Pannill, of Fort Worth, for appellant Marathan Oil Co.

Thompson & Barwise, of Fort Worth, and Meade F. Griffin, of Plainview, for appellants A. B. Wharton, Jr., and E. A. Compton, trustees.

Williams & Day, of Plainview, for appellees.

HALL, Chief Justice.

This case has been appealed twice before. The opinion on the first appeal is reported in Waggoner v. Edwards (Tex.Civ.App.) 68 S.W.(2d) 655, and on the second appeal in Waggoner v. Edwards (Tex.Civ. App.) 83 S.W.(2d) 386. We refer to such reports for a more complete statement of the issues in the case, and will state only such additional facts which are necessary.

The appellants assert that Edwards and his wife sought to recover of E. A. Compton and A. B. Wharton, Jr., as former directors and trustees of the Three D's Products Distributors, Inc., a dissolved corporation, the sum of $6,270, with interest, alleged to be due as rentals under a certain lease dated May 28, 1930, and executed by Three D's Products Distributors, Inc., and J. Arthur Edwards, one of the plaintiffs. This statement is not correct. The plaintiff did not seek to recover rental due under the contract. The action was for damages for breach of the lease. It is so described in the second opinion, by Judge Jackson, 83 S.W.(2d) 386, in which a writ of error was refused.

Plaintiffs had the right to decline to meddle with the property, to take possession, or to lease it to other parties and wait until the end of the term stated in the lease and then sue for rent, but they were not driven to that course. The law did not require them to run the risk of damages to the property, and the insolvency of the tenants, but they had the right, as is asserted in this case, after the breach of the contract and abandonment of the premises by defendants, to sue for compensation for the injury sustained, and the proper measure of their damages is the difference between the contract price for the whole period and such sum or sums as they may have received by way of rentals from third parties, after the use of due diligence to obtain tenants. Massie et al. v. State Nat'l Bank of Vernon, 11 Tex. Civ.App. 280, 32 S.W. 797.

Appellants have briefed the case upon a mistaken theory that this is a suit to recover rent, instead of one for damages for breach of a written lease. For this reason, their brief is of very little assistance to the court in disposing of the contentions urged upon this appeal.

No question is made upon the sufficiency of the pleadings.

The case was tried to the court, without a jury, and the substance of the court's findings is:

1. On May 28, 1930, Edwards leased to Three D's Products Distributors, Inc., lot 1, block 73, of the town of Olton, together with the gasoline station thereon, and also the "bulk plant" located near said lot, together with most of the equipment used in connection with the business, for the sum of $250 per month, payable monthly in advance. That the lessee took charge of the premises, used the same until December 12, 1930, paying the monthly rentals during such occupancy.

2. On December 12, 1930, the Three D's Products Distributors, Inc., assigned said lease to Marathon Oil Company for the remainder of the term mentioned in the lease. That the assignee took possession of the premises, occupied the same until it made an assignment of said lease to T. D. Farley in July, 1932, and paid the rentals during the time it used the property and up to September 1, 1932.

3. On July 27, 1932, the Marathon Oil Company assigned the lease to Farley, who went into possession and occupied the premises until September 22, 1932, on which date he assigned the lease to T. O. McCallon and T. S. Stevenson. Farley paid no rent to any one while he occupied it.

4. McCallon and Stevenson occupied it until March 1, 1933, and paid no rent, and had no intention of paying any, but intended to use and occupy the premises without paying therefor, except such amount as they were to pay Farley for the assignment. That they voluntarily vacated the premises on or about March 1, 1933.

5. That on said last-named date plaintiffs notified defendants that plaintiffs had an opportunity to relet the premises, asked defendants as to their wishes in the matter, and at the same time notified defendants that plaintiffs would hold them for the difference in the amount of rentals received and the amount stipulated in the lease. That plaintiffs relet the premises for the best rental obtainable from time to time, and received the sum of $2,055 therefor.

6. That in July, 1933, plaintiff conveyed to the state, for highway purposes, a strip off the north side of lot 1, about five feet wide at the east end and two feet wide at the west end, for the purpose of widening state highway No. 28, and in July, 1934, a gasoline pump, which constituted a part of the property and was situated on said strip of land, was also removed; otherwise the premises and occupancy thereof was in no way disturbed. That the removal of the pump did not lessen the rental value of the property, there being other pumps on the premises.

In accordance with the court's findings, judgment was rendered in favor of J. Arthur Edwards and Effie Edwards against A. B. Wharton, Jr., and E. A. Compton, as former...