Neuman & Kirmse v. Vogelsang

• Decision Date: 10 December 1921
• Docket Number: (No. 7996.)
• Citation: 236 S.W. 128
• Court: Texas Court of Appeals
• Parties: NEUMAN & KIRMSE v. VOGELSANG.

236 S.W. 128

NEUMAN & KIRMSE v. VOGELSANG.

(No. 7996.)

Court of Civil Appeals of Texas. Galveston.

December 10, 1921.

Appeal from Fort Bend County Court; G. C. Baker, Special Judge.

Suit by L. A. Vogelsang against Neuman & Kirmse. From a judgment for plaintiff, defendants appeal. Affirmed.

J. M. Gibson and C. I. McFarlane, both of Richmond, for appellants.

PLEASANTS, C. J.

This appeal is from a judgment in favor of appellee rendered in an action of forcible detainer brought by him against the appellants, J. J. Neuman and Robert Kirmse, who as partners were doing business under the firm name of Neuman & Kirmse. The premises involved is the lower story of a brick store building situated on the west 90 feet of lots 6, 7, and 8, in block 35, in the town of Rosenberg, and being the western building of the two store buildings situated on the parcel of land above described.

The evidence shows that appellee, who held the premises above described under a lease from Jacob Gray and wife, the owners of the property, on the 1st day of March, 1919, verbally agreed with appellants to let the storeroom in controversy for a rental of $60 per month, payable in advance; the contract of rental being from month to month. Appellants paid $60 per month for the months of March, April, and May. Before the 1st day of May appellee notified appellants that they must surrender possession on the 1st day of June or pay a rental of $75 for that month, and further notified them in writing some time during the month of May that they could not occupy the building after the 1st of July unless they paid a rental of $125 per month. Appellants paid the $75 on the 1st day of June, but failed and refused to pay the $125 rental for the month of July. They offered appellee $75 per month, but this was refused by him. Appellants refused to surrender possession of the building, after demand in writing had been made therefor by appellee, and have continued to occupy and use the building for store purposes since the 1st day of August, 1919, without paying appellee any rent therefor. The reasonable rental value of the building from July 1, 1919, up to the time of the trial was shown to be $450.

Appellants in the court below, in addition to a general denial and a plea of not guilty, especially pleaded that the lease from Jacob Gray and wife under which appellee held the premises was void because obtained by fraud and false representations, and had been declared forfeited by Gray and wife on July 25, 1919, because of the failure of appellee to comply with its terms.

The answer contains the following averments:

"In connection with the issues of fact set forth in defendants' foregoing pleas, these defendants say that there was no relation of landlord and tenant existing between the plaintiff and defendants as to the said premises as to the time of filing of this proceeding, and the defendants allege and show that prior to the 27th of January, 1919, these defendants were occupying said premises, including the lower and upper floors of said buildings located on a portion of the west 90 feet of lots 6, 7, and 8, in block 35, town of Rosenberg, Fort Bend county, Tex., as alleged in plaintiff's petition, as tenants of one Jacob Gray and Amy Gray, husband and wife, paying a monthly rental to the said Jacob Gray and Amy Gray of the sum of $75 per month; and that they were engaged in conducting a mercantile business in said building with a large assortment of dry goods and groceries of the value aggregating about $30,000; and that they were doing a rival and competitive business with the said L. A. Vogelsang, who was at the said time and has ever since conducted in Rosenberg, Tex., a similar establishment; and that said L. A. Vogelsang, contriving and intending to destroy defendants' said establishment and to put these defendants out of business in order to entirely eliminate their competition for the trade in Rosenberg, Tex., secretly persuaded the said Jacob Gray and Amy Gray, his wife, to lease him the said premises, then occupied by the defendants, falsely stating that these defendants were without capital of their own, and that at any time they might have to close...