Mitchell v. Weiss

• Decision Date: 20 March 1930
• Docket Number: No. 2404.,2404.
• Parties: MITCHELL v. WEISS.
• Court: Texas Court of Appeals

Page 699

26 S.W.2d 699

MITCHELL v. WEISS.

No. 2404.

Court of Civil Appeals of Texas. El Paso.

March 20, 1930.

Rehearing Denied April 10, 1930.

Error from District Court, Dallas County; Claude M. McCallum, Judge.

Action by G. A. Mitchell against Martin Weiss for rent, in which defendant filed a cross-action for cancellation of his lease. There was a judgment cancelling the lease and allowing plaintiff a partial recovery, and plaintiff brings error.

Reversed and remanded.

Coke & Coke and Thos. G. Murnane, all of Dallas, for plaintiff in error.

W. P. Donalson, of Dallas, for defendant in error.

HIGGINS, J.

On November 8, 1924, plaintiff in error, Mitchell, leased to defendant in error, Weiss, for a term of five years from January 1, 1925, at a stipulated annual rental payable monthly, certain property situated in the city of Dallas "being the two story brick building known as No. 907 Elm street, and 906 Pacific Avenue, fronting 20 feet on each street, with a depth of 150 feet, and also the two story building known as 909 Elm street and 908 Pacific Avenue fronting 25 feet on each street with a depth of 150 feet adjoining the property first above described on the East, making a total of 45 × 150 ft. in all."

The lease contains the following covenants:

"1. That the Lessee shall pay the rent monthly in advance as aforesaid, as the same shall fall due."

"5. That the Lessee shall, in case of fire, give immediate notice to the Lessor, who shall thereupon cause the damage to be repaired forthwith; but if the premises be by the Lessor deemed so damaged as to be unfit for occupancy, or if the Lessor shall decide to rebuild, the lease shall cease and the rent paid up to the time of the fire."

"7. The said Lessee hereby undertakes to make any repairs necessary for the occupation of the property known as 907 Elm Street and 906 Pacific Avenue at his own expense, and the Lessor is to be at no expense whatever for either of said properties during the currency of this lease."

With the consent of the lessor the lessee sublet the premises at 907 Elm and 906 Pacific to Leyhe Piano Company and W. E. Leyhe for a period of five years from January 1, 1925, at a stipulated rental. The first and fifth covenants of this sublease are covenants to pay rent and to repair in case of fire. They are in the same language substantially as in the lease between Mitchell and Weiss.

907 Elm and 906 Pacific were originally separate buildings, but had been connected so as to form one building.

On April 27, 1927, a fire occurred in the upper story of this building, doing considerable damage.

Mitchell undertook to repair the damage done and on June 7, 1927, notified Weiss the building had been repaired and ready for occupancy.

Weiss claimed the building had not been repaired properly and declined to pay the full monthly rental as stipulated in the contract, but tendered $277.75 monthly, being the sum which had been accepted by Mitchell as the monthly rental of the building known as 909 Elm and 908 Pacific, while the repairs were being made upon the other building. Weiss has continued monthly tenders of the $277.75 in full satisfaction which Mitchell declined to accept.

On September 2, 1927, Mitchell brought this suit against Weiss to recover the monthly installments then in arrears according to the contract.

Weiss answered by general denial and special defense setting up the following: The lease contract between Mitchell and himself and covenant of the lessor to repair, the subletting of 907 Elm, 906 Pacific to the Leyhe Piano Company, and W. A. Leyhe with Mitchell's consent, the occurrence of the fire and the damage thereby done to the premises occupied by the sublessees, the failure of Mitchell to properly repair the damaged building whereby the same was left in a rough, unsightly condition and dangerous to health, life, and limb of persons in and about the same, wherefore he was not legally liable to pay rent. He then admitted he was still occupying the premises known as 909 Elm and 908 Pacific and tendered the balance in arrears therefor which he alleged to be $277.75 per month.

By cross-action he then averred that by reason of the failure to properly repair the building occupied by the sublessees, such sublessees had refused to longer occupy the same and he had lost the rental agreed to be paid by the sublessees, and for the amount thereof he sought to recover over against the plaintiff.

The case was tried at the December term, 1928, of the 101st district court, and submitted upon two issues as follows:

"Did the Plaintiff, G. A. Mitchell, place the premises known as No. 907 Elm Street, and No. 906 Pacific Ave., in as good a condition as said premises were in just before said fire?"

"How much rent is due and owing by the Defendant, Martin Weiss, to the Plaintiff, G. A. Mitchell, as rent for 909 Elm st., and 908 Pacific Ave?"

The first issue was answered No; the second, $6,650, which is less than the contract price for the installments in arrears.

Judgment was not rendered at that term, but consideration of motion...