Norman v. Stark Grain & Elevator Co.

• Decision Date: 21 January 1922
• Docket Number: (No. 8609.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 237 S.W. 963
• Parties: NORMAN v. STARK GRAIN & ELEVATOR CO.
• Court: Texas Court of Appeals

Page 963

237 S.W. 963

NORMAN v. STARK GRAIN & ELEVATOR CO.

(No. 8609.)^*

Court of Civil Appeals of Texas. Dallas.

January 21, 1922.

Rehearing Denied February 25, 1922.

Appeal from District Court, Hunt County; Wm. Pierson, Judge.

Suit by W. F. Norman against the Stark Grain & Elevator Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Clark & Sweeton, of Greenville, for appellant.

B. F. Crosby and M. B. Harrill, both of Greenville, for appellee.

VAUGHAN, J.

Appellee leased appellant's sheet iron warehouse at $60 per month for one year, which collapsed and fell while it was occupied by appellee under and during the term of said lease contract as a grain house. The following questions now arise: (1) Is appellee bound to pay rent after the destruction of the leased premises? (2) Is appellee liable for the cost of rebuilding the warehouse?

Appellant brought suit against appellee for three months' rent, aggregating $180, and for the cost of rebuilding the improvements by appellant at his own expense, amounting to $2,102; appellant basing his charge of liability against appellee upon two grounds: (1) That the lease contract provided "that the lessee shall take good care of the property and not suffer any waste;" (2) that the collapse of the building was caused by the negligence of appellee in overloading it and in the manner of storing the grain therein— further alleging that the building was practically destroyed by the collapse and fall, and that it had to be substantially rebuilt.

Appellee pleaded (1) general denial; (2) that it did not contract or agree "to take good care of the property and not suffer any waste," and that if the lease contract contained said clause same was included therein by mistake, and that it was not the intention of the parties that said clause should be a part of the written contract, and that there was no agreement between the parties that such obligation should be included in the contract. Appellee pleaded other matters in defense, including a counterclaim for damages alleged to have been sustained by appellee on account of certain acts of negligence of appellant, which additional pleadings will not be further noticed, same not being involved in this appeal.

The lease contract was executed on the 23d day of May, 1919, by which appellant leased to appellee the following described property, to wit:

"Lying and being situated in the city of Greenville, Hunt county, Texas, being the W. F. Norman sheet iron warehouse located on East Lee street, just east of the right of way of the Cotton Belt RR and on the south side of said street,"

—for the term of one year from the 1st day of June, A. D. 1919, and as rent for said leased premises appellee contracted to pay appellant $60 per month in advance on the 1st day of each month, the first payment due June 1, 1919. Said contract containing the following clause, which will be very material in the discussion of the isues presented by this appeal, to wit:

"That the lessee shall take good care of the property and its fixtures and suffer no waste."

The warehouse fell in October, 1919, and could not be used for any purpose afterwards until rebuilt. Appellee paid rents for nine months, to wit, to March 1, 1920. On or about March 1, 1920, appellee, on account of the destruction of said warehouse, vacated same, and refused to pay rent for the remaining three months, aggregating $180, under the terms of said lease contract. Appellant rebuilt said warehouse, the work restoring same in condition to be used as a warehouse being completed about June 1, 1920, the date said lease contract between appellant and appellee expired. When the warehouse was abandoned and returned to appellant by appellee it was seriously damaged and badly in need of repair. Appellee refused to repair the building or to pay for the same, and appellant was compelled at his own expense to have same repaired, and did so at a reasonable and necessary expense of $2,102. The leased premises were "to be occupied as a grain warehouse and not otherwise."

At the close of the evidence appellant moved the court to instruct the jury to find a verdict in his favor for the sums aggregating $2,282. After the verdict was returned, he moved the court to enter judgment in his favor for said amount. Said motions were overruled.

Appellee filed motion for court to enter judgment that appellant take nothing by his suit, and that appellee take nothing by its cross-action, which was sustained, and judgment entered accordingly.

The cause was submitted by the trial court to the jury on special issues. The material issues and findings of the jury thereon necessary to be considered in this appeal, are as follows:

"Question No. 1. Was it understood and agreed as a part of the lease contract in controversy that the defendant was to take good care of the property and not suffer any waste? Answer No. 1: No. * * * Question No. 13 (a): Was defendant negligent in the manner or quantity of storing its grain in the building? Answer No. 13 (a): No. Question (b): If so, was its negligence the proximate cause of the fall and injury to plaintiff's building? Answer (b): No."

Special issue submitted to the jury at the request of appellee:

"Was the fall and injury to the building in controversy and its contents caused by an act of God? Answer: Yes."

Appellant, by his third assignment of error, questions the submission of the following special issue to the jury:

"Was it understood and agreed as a part of the lease contract in controversy that the defendant was to take good care of the property and not suffer any waste?"

Contending that the contract, being in writing, and the terms thereof not ambiguous, it was the duty of the court to instruct the jury as to the legal effect thereof.

The contents of the contract as to the clause submitted by said special issue were put in issue by the following plea:

"That if said contract contains any agreement on the part of the defendant to take good care of said property and prevent any injury or waste thereto, the same was included in said contract by mistake, and without the knowledge and consent of the defendant, and there was no intention on the part of the plaintiff or the defendant that such agreement should be incorporated in said written contract, and that there was no agreement between the plaintiff and the defendant that such obligation on the part of the defendant should be included in said contract; that the defendant did not contract or agree to keep said building in repair or from waste, or to repair any such damage as is alleged by the plaintiff to have occurred to said building."

Which plea alleges, in effect, a mutual mistake on the part of appellant and appellee in including as a part of the contract executed by them the clause "that lessee shall take good care of the property and its fixtures and suffer no waste." In other words, that said clause found its way into said contract through the mutual mistake of the parties thereto, and therefore constituted no part of the obligation to be evidenced by said written instrument.

On this issue the following evidence was introduced: Appellant Norman testified:

"I would not have signed the contract if I had not thought that clause that they would not damage fixtures was not in there—would not damage the building; there were no fixtures in that building. I wanted that contract like any other contract I had ever heard made, and that he was to turn this building over to me as good as he got it, and I thought it was in that shape."

J. L. Webb, agent for appellee, testified:

"We both understood what we were signing. After the contract was signed, I took possession of the building on the 1st of June for the Stark Grain & Elevator Company."

J. T. Stark, appellee's president, testified:

"I had a copy of this rental contract in my files. Witness, being asked, `You never raised the question at all until yesterday when you filed your answer about any part of this contract left in here being rightfully left in, did you,' answered, `We didn't understand any part of it was left in.' I had a copy of the contract, and had occasion to go over that copy often since this collapse of the building. I had never said to him before that day that there was a clause in the contract that ought not to have been there, and we didn't state it that day because we didn't consider there was a clause in the contract; we discussed the contract with Mr. Norman just like we did in that letter. I never on that day talked with him and stated to him that there was a specific clause in the contract that ought to have been eliminated. The discussion with Mr. Norman was with reference to the contract as a whole."

Conceding that the above evidence was sufficient for the court to submit to the jury the issue of mutual mistake as pleaded by appellee, the question submitted was not authorized, as same did not call for a finding of the jury on the issue whether or not the clause "that the lessee shall take good care of the property and its fixtures and suffer no waste" was included in the contract by mutual mistake of the parties thereto. The issue as submitted to the jury called for a finding as to the legal effect of the written lease contract; to be specific, for the understanding and agreement of the parties, when same was clearly expressed by the terms of the written instrument before the court. The understanding of the parties must be gathered from the plain, expressive terms of the written instrument and not by what oral testimony may or may not show with reference to the operation of the terms on the minds of the parties. Whether or not the parties agreed to perform certain things, and whether or not the performance of such things so expressed in the contract was understood by the parties, must be gathered from the terms of the contract by the court and the legal effect stated in the instructions to the jury. Shepherd v....