McCelvy v. Bell
| Decision Date | 09 May 1928 |
| Docket Number | (No. 3027.) |
| Citation | 6 S.W.2d 390 |
| Parties | McCELVY v. BELL et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Lamb County; Chas. Clements, Judge.
Suit by A. F. Bell and another against G. E. McCelvy, Jr., and others. Judgment for plaintiffs, and defendant named appeals. Reversed and remanded.
John L. Ratliff and Burton S. Burkes, both of Lubbock, for appellant.
E. A. Bills, of Littlefield, for appellees.
The appellees A. F. and L. F. Bell filed this suit in the district court of Lamb county against the appellant, G. E. McCelvy, Jr., as original lessee, and against H. L. Rice, S. B. Claunch, and W. A. Claunch, as subtenants, to recover a sum of money alleged to be due under a lease of a filling station situated in Littlefield.
It is alleged that McCelvy took charge of the premises under the written lease, and later sublet and made an underlease of the premises to the other defendants, who assumed the payment of all rents, whereby all the defendants promised and became liable for said rents; that on or about May 1, 1926, the defendants abandoned the premises, and by reason thereof are indebted for the balance of the rent not paid, amounting to $2,500, less $950, which is admitted as a proper set-off, being the rents received by the landlord from other tenants after the alleged abandonment.
The petition alleges that the lease provides for $500 as liquidated damages, and, in the alternative, sues for the recovery of that amount.
The defendant Rice answered by general demurrer and general denial, and made no further appearance. The defendants S. B. and W. A. Claunch defaulted.
The defendant McCelvy answered, and contested the right of plaintiffs to recover against him. His answer consists of a general demurrer, several special exceptions, a general denial, and specially alleges that McCelvy did not sublease the premises in question, but made an assignment thereof to his codefendants. The two stipulations in the lease material to the contentions to be considered provide as follows: (a) That the lessee (McCelvy) should have the right to subrent or assign the premises of said lease in whole or in part, at any time; and (b) in the event McCelvy should abandon this lease before the expiration, of the term, the lessee, "or his assigns, shall become indebted to the lessors in the sum of $500, as liquidated damages."
The case was tried to a jury, and the court directed a verdict in favor of the appellees against all of the defendants in the sum of $750, and in favor of McCelvy against his codefendants for whatever amount he should have to pay the plaintiff, and judgment was rendered accordingly.
The first contention is that, because the plaintiffs' petition fails to allege that there has been a breach of the contract by refusal to pay the liquidated damages, and does not allege that demand was ever made therefor, it is therefore fundamentally defective.
This contention is without merit. The plaintiffs allege that the defendants failed and refused to pay the rents, and breached the contract by abandoning the premises, and that, by reason of such failure to pay, and their abandonment of the premises, they became indebted to plaintiffs in the sum stipulated as liquidated damages.
It is true that there is no allegation that plaintiffs had demanded the liquidated damages or that defendants had failed to pay said sum, but these allegations are unnecessary. Having alleged a breach of the lease contract, plaintiffs' right of action to recover the liquidated damages, if he elected to sue for said sum instead of the unpaid rent, became absolute. The rule is that no previous demand is necessary when the obligation to pay becomes complete. Ballew v. Casey, 60 Tex. 573; Green v. Scales (Tex. Civ. App.) 219 S. W. 274. But this contention becomes immaterial, because appellees, under their pleadings, had the right to recover of the defendants the balance of unpaid rent, less the admitted credit of $950. Ogus, Rabinovich & Ogus Co. v. Foley Bros. D. G. Co. (Tex. Com. App.) 252 S. W. 1048, and authorities cited.
As stated above, the plaintiffs sought to recover, as damages for breach of the contract, the total amount of rent due for the remainder of the term, less the credit of $950, for which the premises had been leased since the defendants had abandoned the place. If the provision for the payment of $500 can be denominated a stipulation for liquidated damages, nevertheless, in our opinion, the contract did not require the plaintiffs to accept the $500 in satisfaction, in the event of a breach, but they could exercise their option and resort to any other remedy available under the contract. The contract did not, in express terms or by necessary implication, bind the plaintiffs to accept the $500 in the event...
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Mahoney v. Tingley
...his actual damages. For support of this principle, McCormick cites Bonhard v. Gindin, 104 N.J.L. 599, 142 A. 52 (1928); McCelvy v. Bell, 6 S.W.2d 390 (Tex.Civ.App.1928); and dictum in Weatherford v. Adams, 31 Ariz. 187, 197, 251 P. 453 (1926). Other textwriters also recognize the rule McCor......
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