Marsh v. Phillips

• Citation: 144 S.W. 1160
• Parties: MARSH et al. v. PHILLIPS et al.
• Decision Date: 17 January 1912
• Court: Texas Court of Appeals

144 S.W. 1160

MARSH et al. v. PHILLIPS et al.

Court of Civil Appeals of Texas. San Antonio.

January 17, 1912.

Rehearing Denied March 13, 1912.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Action by Mrs. Pattie F. Phillips and another against Ed Marsh and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Jackson & Lessing and Jno. F. Weeks, for appellants. Jones & Jones, for appellees.

COBBS, J.

This suit was instituted for the recovery of $800 as liquidated damages agreed upon and expressed in a bond dated July 30, 1909, signed by Ed Marsh and J. I. Broyles. The appellants were the owners of 25 feet of lot 20 in block 100 of Campbell's addition in the city of El Paso, known as the "International Hotel property," and agreed to lease to Joseph Herspring for a period of five years for the purpose of establishing a candy factory thereon. Appellee agreed to make certain improvements to remodel said building for that purpose at a cost of not less than $800. Joseph Herspring, on his part, was to guarantee and secure by a bond to the appellants, which he did, that he "shall take charge of and occupy the building and premises, * * * and shall place in the said building the machinery, tools, and stock as represented and claimed by them, aforesaid, on the 1st day of September as agreed to by him, then, in that case, this obligation shall be void, otherwise it shall remain in full force and effect as liquidated damages to the said Mrs. Pattie F. Phillips and Mrs. A. Ross Armstrong for the expenses in making the changes as hereinbefore provided." The bond recited the improvements to be made. The improvements to be made were specified by Joseph Herspring in order for him to make the purposed use which without could not be used for the desired purpose. The bond fully recited and set out the purpose for which it was given, and that it was to reimburse for the making of the changes until the lessee should place in the "building machinery, tools, and stock, which will stand as security for the rent of the premises thereafter."

The lease between appellee and Joseph Herspring (the Herspring Candy Company) was dated the 30th day of July, 1909, and signed by Mrs. Pattie F. Phillips and Mrs. A. Ross Armstrong by J. S. Jeffries, agent, and Jos. Herspring. It was for a term of five years from the 1st day of September, A. D. 1909, for the sum of $6,000 to be paid in monthly installments of $100 per month in advance, the first to be paid September 1, 1909, and the first of each month thereafter in advance until the entire amount shall have been paid. It was stipulated therein, among other things, that Joseph Herspring would promptly pay the rent in advance on the first of each month. It was agreed at the beginning of the lease that Joseph Herspring would "put into said building a large amount of machinery and personal property for the purpose of operating a candy factory and manufacturing candy, and that to secure the payment of the said six thousand dollars hereinbefore agreed upon as the rental of said premises for the period of five years * * * a first lien upon all of the machinery, tools, and equipment as well as manufactured goods contained in the leased and rented premises aforesaid." Upon default in any payment lessor retained the right to forfeit lease and re-enter. The bond referred to the agreement in the lease of the building, and set out the specifications called for that were to be done in the remodeling of the building. The two instruments were, in effect, delivered contemporaneously, and are to be construed together. The bond was not signed by the principal. That was unimportant so far as appellees are concerned, as he was to get security satisfactory to them, which he did.

He was bound to his sureties by reason of their going on his bond as such, whether he signed it or not. The improvements were made in accordance with the terms of the contract by appellee at a cost of $860; the additional $60 being for extras. Joseph Herspring accepted the building, went in possession thereof with his business, occupied said premises, and paid two months' rent. He then left. It was stipulated: "Before commencing to make such changes and improvements on said building, it was required as an evidence of good faith and security that the said Joseph Herspring, as aforesaid, will take charge of building under said lease on the 1st day of September, A. D. 1909, and have the property in the building to stand security for rent."

The evidence disclosed the fact that the parties executed the contract for lease through J. S. Jeffries, who was appellees' agent. It shows that appellants signed the bond and delivered it to Joseph Herspring, who was to sign his name thereto, but did not. He delivered it to appellees without their knowledge, though he had agreed with his sureties to sign it. Thereupon the appellees constructed the improvements and delivered possession of the building to Joseph Herspring, who put some machinery, tools, and stock in the building, used and occupied it for manufacturing candy for two months, for which he paid rent and abandoned the premises, and hence this suit.

There was a dispute upon almost every material issue in the case; the main contention being over the dispute as to whether Joseph Herspring put in the building property sufficient to comply with his agreement to provide security for his rent, the appellant contending upon this issue, placing of any machinery, tools, and stock in the building satisfied the bond, together with his taking and occupying the premises for the purposes stated, which is undisputed.

The first error assigned is to the effect "that, as Herspring placed in the leased premises property of some value and of the character and description provided for by the terms of the bond, the trial court erred in refusing to instruct a verdict for the defendants." There was no dispute that property of some value and of the character and description named was placed in the premises, but claimed it was not of sufficient quantity, description, and value to comply with the agreement and the obligation of the bond. It was not error for the court to refuse to so instruct the jury peremptorily. It was a question of fact for their determination alone as to whether the articles put in the building complied with their undertaking, in whole or substantially so, and to have taken that issue from the jury would have been an error.

Nor was it of any moment that the property was subject to an express or statutory lien, or whether portions of said property placed therein were released upon the claim of a third person thereto, nor that $200 was paid in rent before the tenant abandoned the premises in order to have the effect to release appellants or in any way affect the bond, unless the quantity placed there complied with the contract. This in reply to appellants' propositions under the first assignment.

Appellants' second assignment is that the court erred in withdrawing from the jury the issue of fact made by the pleadings, and the evidence as to whether...