McClintic v. J. D. Young Corporation

• Decision Date: 30 December 1933
• Docket Number: No. 1446-6113.,1446-6113.
• Citation: 66 S.W.2d 676
• Parties: McCLINTIC et al. v. J. D. YOUNG CORPORATION.
• Court: Texas Supreme Court

66 S.W.2d 676

McCLINTIC et al. v. J. D. YOUNG CORPORATION.

No. 1446-6113.

Commission of Appeals of Texas, Section B.

December 30, 1933.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by the J. D. Young Corporation against C. A. McClintic and another and cross-action by defendants. To review a

judgment in the Court of Civil Appeals affirming a judgment for plaintiff [41 S.W.(2d) 686], defendants bring error.

Reversed and remanded for another trial.

T. D. Kimbrough and G. W. Dunaway, both of Midland, for plaintiffs in error.

Paul Moss, of Odessa, for defendant in error.

RYAN, Judge.

On March 1, 1927, McClintic Bros. leased to the Odessa Furniture Company, wholly owned by J. D. Young, for the use and benefit of the J. D. Young Corporation, then in process of formation, for a period of three years, beginning on April 1, 1927, a certain sheet metal store building 25 feet wide by 80 feet long with an annex shed 25 feet wide by 20 feet long on the back, then in process of erection on lot 17, block 36, in the original town of Odessa, the construction to be completed some time during the month of March, 1927. A monthly rental of $125 was agreed to be paid. Clause 7 of the contract between the parties reads as follows: "This property is rented for a furniture business and second party covenants and agrees that the same shall be so used, and that no improper or offensive use of the said property shall be permitted, and at the expiration of this lease that he or his successors as contemplated herein, will quit and surrender said premises in as good condition as is consistent with reasonable use and wear thereof."

Soon after the lessee had begun to occupy the building, an oral contract was entered into whereby an annex was added to the building and the rent increased to $140 per month.

On June 28, 1929, the J. D. Young Corporation filed suit in the district court of Ector county, alleging that the building and annex were not finished in accordance with the terms of the contract, but that the roof was leaky and the rear end was not completed to prevent rain water from entering the store and annex, because of which, water entered the building and damaged lessee's stock of merchandise in the sum of $1,284.72, and furniture, bedding, and other articles commonly kept in a furniture store, for which purpose the premises were leased, were damaged by water. The plaintiff prayed a cancellation of the lease, tendered possession of the premises, and prayed judgment for said sum of $1,284.72, with foreclosure of lien allegedly given by virtue of article 5236, Rev. Stat. 1925.

McClintic Bros. answered by general and special exceptions, general denial, special answer, and cross-action for recovery of $840 delinquent rent alleged to be due under said lease contract.

In answer to special issues, a jury found (a) the building was erected in compliance with the written contract, but (b) the building was not suitable for a furniture business, (c) the tenant was not damaged by reason of the breach of contract, and (d) was indebted to the lessors in the sum of $840 for rent. Judgment was accordingly rendered denying the tenant any recovery for damages, and against him on the lessor's cross-action for rent, in the sum of $840.

The Court of Civil Appeals at El Paso concluded that the contract obligated McClintic Bros. (lessors) to erect a building suitable for a furniture business, and, upon their failure to do so, lessee was entitled to recover any damages sustained by it resulting from such failure, and, as the question of such damages was not passed on by the jury, reversed the trial court's judgment and remanded the cause. 26 S.W.(2d) 460.

Upon a retrial in the district court an itemized list of goods damaged, amounting to $984.72, was pleaded by plaintiff, lessee, recovery for which was sought, together with an additional $1,000 as general damages to the stock, not scheduled or itemized, because of a general depreciation, together with the cost of labor and repairs necessary to put the damaged goods and furniture in a saleable condition after being soaked by rain water.

A jury, to whom special issues were submitted, found that the McClintic Bros. did not erect for the lessee a building suitable for a furniture business, that plaintiff sustained damages in the sum of $1,984.72 because of the failure of McClintic Bros. to erect such a building, and that plaintiff used ordinary care to prevent further injury or damage from rains; on such findings the trial court rendered...