McLean v. Hillman, 7136

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: NORTHCUTT
• Citation: 352 S.W.2d 310
• Parties: Mozelle McLEAN, Appellant, v. E. G. HILLMAN, Appellee.
• Docket Number: No. 7136,7136
• Decision Date: 27 November 1961

Page 310

352 S.W.2d 310 Mozelle McLEAN, Appellant,
v.
E. G. HILLMAN, Appellee. No. 7136. Court of Civil Appeals of Texas, Amarillo. Nov. 27, 1961.
Rehearing Denied Jan. 3, 1962.

Jack C. Burroughs, Dallas, for appellant.

Leffingwell, Dawkins & Oehmann, Dallas, for appellee.

NORTHCUTT, Justice.

On February 9, 1960, Mrs. Mozelle McLean, a widow, leased a resort tourist lodge located on Texhoma Lake, known as HiLand Lodge, to Mr. E. G. Hillman under a lease contract for a period of three years beginning on the 1st day of March, 1960 and ending on February 28, 1963. At the time of making the lease agreement Mrs. McLean sold to Mr. Hillman certain merchandise such as blankets, linens, dishes, etc. The sales contract was later drawn up in writing and dated February 13, 1960. The sales contract provided that at the termination of the lease Mrs. McLean would repurchase such merchandise or their replacements. The written lease contract provided for the payment of $1000.00 which was for the first and last months rent on the contract and $500.00 the first of each following month starting April, 1960.

Appellant, plaintiff in the trial court, and appellee, defendant in the trial court, will be hereafter referred to as they were in the trial court.

Defendant took possession of the premises on March 1, 1960, operated the same and paid the rent as called for in the lease up to July 13, 1960, at which time defendant, under his own testimony, wanted to get out from under the lease and wrote a letter to plaintiff, complaining that the sewerage disposal system was inadequate and because of that he intended to cancel the lease. Defendant claimed that plaintiff had concealed the fact that the septic tank was inadequate and same amounted to a fraud and also claimed that the lease was void because it did not contain an adequate description of the land; all of this was done by letter and in said letter the property was tendered back to the plaintiff with a demand that defendant be reimbursed for expenses which he had incurred because of the lease.

Plaintiff returned from Colorado where she had been visiting for her health and before anything further was done, the defendant, through his attorney, wrote a letter demanding that the lease be canceled and that plaintiff repurchase all of the tangible merchandise (blankets, dishes, etc.), together with the payment of $320.00 which defendant claimed he had spent for replacements, making a total of $1,763.00 and also demanded return of one-half of

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the month's rent which had been paid in advance for the last month of the three year lease. Defendant refused to pay the rent beginning August 1, 1960. Further, in the letter dated August 5, 1960, defendant stated that if plaintiff did not repurchase the merchandise by paying him the sum of $1,763.00 and also refund to him $266.56 of the last month's rent on the lease, that he would sell all of the plaintiff's furniture and fixtures, including the air-conditioner, stoves, and machinery. This letter was written by defendant's attorney, which contained a post script addressed to the defendant which we deem necessary to set out verbatim, and is as follows:

'Mr. Gene Hillman

'Gene: You purchased everything on that list from Mrs. McLean and it is yours unless she wants to repurchase it as she agreed that she would. I don't know whether or not it's worth $1,600, but I know she cannot replace it for that. If she doesn't want to meet our terms I suggest that you have a second hand furniture dealer from both Sherman and Denison to come out and give you written bids as to what they will pay you for everything on the list and sell it to them lock, stock, and barrel.'

Upon receipt of that letter, plaintiff immediately filed this suit, seeking a temporary restraining order and injunction, which was issued and the defendant was restrained from selling any of the furniture and fixtures. Defendant then voluntarily left the leased property and plaintiff took over the same.

Defendant then filed an answer and cross-action to this suit wherein it was claimed that he was entitled to specific performance of the repurchase agreement and for judgment in the sum of the $1,700 plus, and one-half of the last month's rent which had been paid on the lease. Plaintiff filed amended pleadings seeking damages for the property which had been damaged while the defendant had possession of it.

The case was tried to a jury and the jury returned a verdict answering all of the material Special Issues in favor of plaintiff, finding that defendant had forced plaintiff to cancel the lease because...