Park v. Sullivan

• Court: Texas Court of Appeals
• Writing for the Court: Stanford
• Citation: Park v. Sullivan, 12 S.W.2d 265 (Tex. App. 1928)
• Decision Date: 22 November 1928
• Docket Number: (No. 695.)
• Parties: PARK v. SULLIVAN.

12 S.W.2d 265

PARK v. SULLIVAN.

(No. 695.)

Court of Civil Appeals of Texas. Waco.

November 22, 1928.

Rehearing Denied January 3, 1929.

Appeal from District Court, Limestone County; W. T. Jackson, Judge.

Suit by G. T. Sullivan against P. S. Park and others. From a judgment against named defendant and one other defendant, named defendant appeals. Affirmed.

L. W. Shepperd and J. E. Bradley, both of Groesbeck, and N. T. Stubbs, of Mexia, for appellant.

Frank C. Bolton, of Mexia, and A. B. Geppert, of Teague, for appellee.

STANFORD, J.

Suit was filed by appellee, G. T. Sullivan, against appellant, P. S. Park and J. H. Park, and John Lane, to recover damages against all three of said parties for breach of a lease contract executed by P. S. Park by his agent, J. H. Park, to appellee, G. T. Sullivan, by the terms of which what was then known as the Henson Hotel, with all the furnishings therein contained, was leased to appellee for $60 per month, from December 1, 1924, to December 1, 1925. At the time said lease was executed, November 20, 1924, John Lane was occupying said hotel under a lease which did not expire until April 6, 1925, but appellee contended that at the time the lease was given to him November 20, 1924, P. S. Park, by J. H. Park, agent, agreed to give him possession December 1, 1924, and the said Lane agreed to vacate and give him possession on said date. Lane contended he agreed to give appellee possession December 1, 1924, if he (Lane) could get another place to move into. Appellant's principal defense was that J. H. Park, his brother, had no authority to execute said lease as his agent.

In response to special issues, the jury found:

(1) That at the time of the execution of the lease and contract to plaintiff by J. H. Park, J. H. Park did have actual authority from his brother, P. S. Park, as agent, to rent or lease said property.

(2) That J. H. Park did unconditionally contract and agree with plaintiff to lease him the premises, hotel, and fixtures for the time and under the terms expressed in the written contract in evidence, free from the contingency of Lane's agreement to give possession of the premises on December 1, 1924.

(3) That the defendant Lane did unconditionally promise and agree to deliver possession of the hotel and property in question to plaintiff on December 1, 1924, free from any contingency of his securing another place by that time.

(4) That the value of the lease or rental contract upon the hotel and fixtures in question covering the period from December 1, 1924, to December 1, 1925, was $4,000.

The court found that appellee agreed to pay $720 for said lease for one year from December 1, 1924, to December 1, 1925, and that he had paid $60, leaving a balance of $660 rent unpaid, which amount the court deducted from said $4,000, leaving $3,340, for which amount the court entered judgment in favor of appellee Sullivan against P. S. Park and G. H. (John) Lane, jointly and severally, and decreed that appellee take nothing as to J. H. Park. P. S. Park alone has appealed, and presents the record here for review, complaining only of the judgment of appellee against him. This is the second appeal in this case, the former being reported in 286 S. W. 541.

That J. H. Park, on November 20, 1924, as the purported agent of P. S. Park, did execute a lease to appellee, giving appellee the right to occupy the Henson Hotel property from December 1, 1924, to December 1, 1925, for $60 per month, is not controverted. That said contract was breached is not disputed. That appellee sustained damages to the amount of $3,340 is not questioned. As we view the case, the principal question involved is the sufficiency of the evidence to support the finding of the jury to the effect that J. H. Park did have the authority to execute said lease. Appellee alleged, in substance, that J. H. Park was in full control of said hotel property as agent for P. S. Park, with authority to lease same; that on November 20, 1924, he leased said property from P. S. Park under the following lease contract — copying same in full. The lease is signed: "P. S. Park, per J. H. Park, Agt. and Atty." Appellee alleged further that P. S. Park, by his agent, J. H. Park, agreed appellee should have possession on December 1, 1924; that John Lane was in possession at the time said lease was executed November 20, 1924, but that the said P. S. Park, by his agent, J. H. Park, and also John Lane, agreed the said Lane would vacate said property by December 1, 1924, but that on December 1, 1924, the said Lane informed appellee that he would not surrender possession of said property, and that P. S. Park, by his said agent, refused to take any steps to assist appellee to secure possession, but, on the contrary, informed appellee that John Lane would continue to keep said premises, that he would see that appellee did not get possession, for the reason that oil had been discovered at Wortham and that the lease had become very valuable. Appellee alleged further, in effect, that after oil was discovered at Wortham and a lease on said property became very valuable, the said J. H. Park, individually and as agent for P. S. Park, entered into a conspiracy with Lane to keep John Lane in possession of said property, and all of said parties divide the revenues derived from said property during said oil boom, etc., and that if P. S. Park did not enter into said conspiracy, he afterwards ratified same, and did assist in keeping Lane in possession, and accepted rent from him, etc., and the division of profits from the operation of said hotel by defendant Lane was fully carried out, etc.

The record discloses that J. H. Park and P. S. Park were brothers; that J. H. Park lived at Mexia and was engaged in the insurance and notary business, and P. S. Park, the owner of the hotel situated in Mexia, lived in Bryan, Tex.; that prior to the execution of the lease in question, J. H. Park had been looking after the hotel for his brother, collecting rents, etc.; that the lease on said hotel to Lane dated April 1, 1924, and expiring on April 1, 1925, was signed, "P. S. Park, by J. H. Park, Agt. & Atty." It is true both J. H. and P. S. Park testified that J. H. Park talked to his brother over the phone before executing the Lane lease. It seems the negotiations resulting in the execution of the lease to appellee continued over three days, November 18th, 19th, and 20th. The jury could well conclude that he talked over the phone to his brother before executing the lease to appellee, or, at least, that J. H. Park had good reasons to believe he had such authority, else he would have done so. The lease executed by J. H. Park as agent and attorney for P. S. Park, to appellee, was dated November 20, 1924, and runs from December 1, 1924, to December 1, 1925. This lease authorized appellee "to clean up said place at his own expense, to paint and paper such room or rooms, lobby and signs as may suit his mind or convenience, also at his own expense." On November 22, 1924, appellee employed a painter and began, with the permission of Lane, who was then in possession, to clean up and repaint, and did repaint the inside woodwork in the lobby, and some 16 rooms in said hotel, and finished same on Saturday night before December 1, 1924. Also, at the suggestion of J. H. Park, appellee changed the name of said hotel from the Henson Hotel to The Oil City Hotel, and had a sign painted and put up evidencing such change. The jury could well conclude that P. S. Park must have heard or been apprised of the improvements being made in his hotel by appellee, changing the name, etc., extending over a period of some 10 days.

Appellee testified: "I asked him (Lane) if he would guarantee me the possession of the place December 1st, 1924, and he said he absolutely would and would be glad to get out of it, and he said the roof had been leaking in a dozen places, and that business was poor and that he hadn't paid any rent for four or five months, and furthermore that he didn't intend to pay any more while business was poor and the roof was leaking, and he said he was willing to give possession at any time between then and December 1st, and if I wanted to rent it, to go right ahead. * * * I remember the day the oil well came in at Wortham, it was Thanksgiving Day, November 27th, I saw Mr. Lane after the oil well came in and there was a change in his conduct toward me, it wasn't near as warm as it was before." On December 1, 1924, appellee tried to take possession, but Lane refused to permit him to do so. He then filed suit for possession and sequestrated the property, and went to J. H. Park; appellee testifying: "I told him we had some papers prepared to put Lane out, and we wanted him and his brother, P. S. Park, to join us, and Mr. Park said, `No, I won't do nothing about putting Jack Lane out of that place,' and he said: `Since I have entered into that contract with you, that place is worth a thousand dollars a month, and I won't do nothing toward putting him out, and if you go to putting him out, I will see that he stays there.'"

Appellee did sue and sequestrate said property, but Lane replevied same by giving a...