Marvin Drug Co. v. Couch
| Decision Date | 14 October 1939 |
| Docket Number | No. 12763.,12763. |
| Citation | 134 S.W.2d 356 |
| Parties | MARVIN DRUG CO. v. COUCH. |
| Court | Texas Court of Appeals |
Angelo Piranio, Lee T. Johnson, Jr., and O. F. Wencker, all of Dallas, for plaintiff in error.
Bowyer, Gray, Thomas & Jaffe, of Dallas, for defendant in error.
Marvin Drug Company, plaintiff in error, was defendant in the trial court and A. B. Couch was plaintiff, and they will be so referred to here for greater clarity. Suit was for the alleged breach of an implied covenant relative to the operation of a drug store on Hillcrest Street, City of University Park, Dallas County, wherein plaintiff was lessor and defendant the lessee. Upon trial and answers of the jury to certain issues, plaintiff was given judgment for damages and attorney's fee in the sum of $2,033.77, which was by defendant duly appealed.
Mr. Couch was owner of the premises in question and had operated a drug business therein for a number of years. On December 12, 1933, he entered into a five-year written lease with defendant for the continued occupancy of the premises as a drug store, the rental consideration being "Five Per Cent (5%) of the gross cash received from sales, and money collected on accounts on business done from the leased premises during the first year of the lease term and Six Per Cent of the said gross cash received for the last four years of said term." Marvin Drug Company began occupying the leased premises on or about the above date and continued therein until November 6, 1937, when the lease was terminated by mutual agreement. It was plaintiff's contention, as evidenced by his pleading, that there was an implied covenant in the rental contract that defendant would operate the drug store in the usual and customary manner as drug stores were operated in the town and vicinity of University Park; alleging that from the inception of defendant's tenancy—December 12, 1933—up to January 16, 1937, it operated the premises in such usual and customary manner, the average rental received by plaintiff for the first year being $209 per month. During the second year of the lease, the average monthly rental was $332.48, and during the third year, $340.64 monthly; that beginning January 16, 1937, defendant ceased to operate the store in the usual and customary manner in which drug stores in that vicinity were operated, in that the store was not opened until eight o'clock in the morning and was closed at seven o'clock in the evening; further contending that for a period of time, curb service was not furnished to customers, the stock of merchandise was depleted, and that from January, 1937, up to the cancellation of the lease on November 6, 1937, plaintiff's average monthly rental was $110. Plaintiff further charged that, if the defendant had continued to properly operate the store, he would have received an average monthly rental of $375 per month for the year 1937; and recovery was sought for the difference between the rent actually received and that which plaintiff claims should have been forthcoming had the store been properly operated. Attorney's fee of $250 additional was claimed under the contract provision that "If, on account of breach or default by lessee of any of lessee's obligations hereunder, it shall become necessary for the lessor to employ an attorney to enforce or defend any of lessor's rights or remedies hereunder, then in any such event any reasonable amount incurred by lessor as attorney's fees shall be paid by lessee."
Defenses interposed by lessee, Marvin Drug Company, were, in substance, (1) of no implied covenant in the lease such as was alleged by plaintiff; no knowledge of a custom whereby drug stores in neighborhood districts or in the vicinity of the premises in question were to be opened or closed at any special hour; and that defendant was not obligated under the lease to operate the store in any particular manner; and (2) that during the entire period up to January, 1937, on account of conditions and of the percentage provided for in the lease as rent, defendant could not operate the business at a profit and that it closed the store in the evening and opened it later in the morning to minimize its losses; "That this defendant operated the store from January 1937 until the lease was surrendered in a proper manner, with due regard for proper business conditions, and that although the rental paid to plaintiff was not as large as had been paid in previous years, nevertheless by reason of closing earlier at night and opening later in the morning the defendant's losses were reduced and diminished." Defendant also denied that under any construction of the contract could it be liable for attorney's fees.
The issues submitted to the jury and their answers were:
The amount of $1,516.23 actually received by plaintiff as rent during 1937 being deducted from the above jury finding of $3,300, plus the $250 attorney's fee, fixed the judgment of the trial court against defendant in the sum of $2,033.77 as heretofore stated.
Many of defendant's 22 propositions under its assignments of error relate to the same matters of law. In effect, the general questions presented in the briefs for our consideration are (1) whether plaintiff was entitled to maintain the suit on the theory of an implied covenant in the lease; (2) whether there was error in continuing the proceedings with eleven jurors after a finding by the court that one juror had become disabled during the course of the trial; (3) consisting of detailed objections to the submission of jury issues; (4) alleged improper argument of defendant's counsel to the jury.
Paragraph 9 of the lease provided that the stipulated percentage rental should be paid to lessor on the 10th of each month for the preceding month upon the basis of cash register readings of gross cash receipts, and should the lessor at any time be not satisfied with such readings, that he, at his own expense, could audit and check the drug store's books and reports. Plaintiff Couch testified that he had been operating the premises prior to the lease and occupancy by defendant, and that the time of opening was between six-thirty and seven o'clock in the morning, closing at twelve o'clock midnight; that defendant had employed plaintiff as manager of the store for six or seven months under the lease in question and the store continued to be opened and closed at approximately the same hours; that he was then transferred to defendant's Santa Fe Drug Store (down town) where he remained about eighteen months, when his resignation was requested; that after leaving defendant's employ, he observed the daily operation of the Hillcrest store and that same had been opened and closed about the same time as when he was manager thereof, i. e., from between six-thirty and seven A. M. and twelve o'clock midnight; that up to January, 1937, the stock was kept up, with good delivery and curb service, when a sign was put on the front door "We open at eight o'clock and close at seven"; that other changes occurred in a seeming indifference to business and customers, suspension of curb service and reduction of stock. Plaintiff further testified as to rentals and amount of gross cash received from business done at the store during 1936 and 1937, up to the time the lease was canceled. These comparative figures are:
Reduction
Month 1936 1937 in Volume
January $6827 $5221 $1600
February 5254 4168 1086
March 4890 3029 1861
April 5557 2632 2925
May 5197 2630 2567
June 5788 2352 3436
July 5447 2028 3419
August 5184 2045 3139
September 4905 1734 3171
October 4827 1965 2862
November 5265 2515 2750
It was the testimony in part of Alfred Beilharz, a realtor and witness for plaintiff, that he had originally negotiated the lease between defendant and plaintif...
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