Perren v. Baker Hotel of Dallas

• Decision Date: 09 March 1950
• Docket Number: No. 2900,2900
• Citation: 228 S.W.2d 311
• Parties: PERREN v. BAKER HOTEL OF DALLAS, Inc.
• Court: Texas Court of Appeals

Page 311

228 S.W.2d 311

PERREN v. BAKER HOTEL OF DALLAS, Inc.

No. 2900.

Court of Civil Appeals of Texas, Waco.

March 9, 1950.

Rehearing Denied March 30, 1950.

Carter & Gallagher, Dallas, R. G. Carter, Dallas, Ben T. Warder, Jr., Dallas, for appellant.

Callaway & Reed, Dallas, Carl B. Callaway, Dallas, O. D. Montgomery, Dallas, Cantey, Hanger, Johnson, Scarborough & Gooch, Fort Worth, for appellee.

HALE, Justice.

Appellant, O. J. Perren, sued appellee, Baker Hotel of Dallas, Inc., a corporation, under the Declaratory Judgments Act, Vernon's Ann.Civ.St. art. 2524-1, to establish the validity of a verbal contract of lease covering a suite of seven rooms in appellee's hotel for the lifetime of his wife, or during the joint lives of himself and his wife, at a rental of $500.00 per month. He alleged in substance that the verbal contract upon which he relied was entered into about the year 1940 as a result of negotiations between his wife and Fenton J. Baker who as President and General Manager of appellee was acting within the scope of his actual or apparent authority when he entered into the verbal agreement on behalf of appellee. He also sued for damages alleged to have resulted from an increase in rent charged after the consummation of the lease, for penalties under the federal Housing and Rent Act of 1947, 50 U.S.C.A.Appendix, § 1881 et seq., and for an injunction against appellee enjoining it from interfering with his possession of the leased premises. Appellee answered with various pleas in bar and in addition thereto it filed a cross-action against appellant, alleging that his tenancy was terminated as of May 5, 1948 and praying for a judgment decreeing the right of possession of the rooms to be in appellee.

The case was tried before a jury. After the close of the testimony introduced by appellant the trial court granted the motion of appellee for an instructed verdict and rendered judgment according. Appellant says the court below erred in granting appellee's motion for an instructed verdict and in rendering judgment for it because the evidence was such as to require the court to submit to the jury for determination the material questions relevant to whether or not the parties entered into the verbal lease agreement as alleged by appellant.

Before he was entitled to obtain any relief in this cause it was necessary for appellant to establish by competent, admissible evidence the existence of each essential fact element involved in the verbal contract declared upon. In passing upon the competency of the evidence to establish such facts, or to raise issues for the jury with reference thereto, it was and is the duty of the courts to view the evidence as a whole and all reasonable inferences that may be drawn therefrom in the light most favorable to appellant. When thus viewed, if there was any evidence, either direct or circumstantial, which could have properly served as the basis for a legal inference of the essential facts sought to be established, then such issues, if otherwise material, should have been submitted to the jury. On the other hand, if there was no evidence of probative force establishing or tending to establish one or more of the ultimate fact elements involved in the verbal contract relied upon, or if the probative force of slight testimony with reference thereto was so weak that it only raised a mere surmise or suspicion of the existence of some or all of the essential facts sought to be established, then it was the duty of the trial court to withdraw the case from the jury or to instruct the verdict. Texas Pacific Coal & Oil Co. v. Wells, Tex.Civ.App. 151 S.W.2d 927; Wells v. Texas Pacific Coal & Oil Co., 140 Tex. 2, 164 S.W.2d 660; Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

Appellant and his wife each testified at length upon the trial. According to the testimony of Mrs. Perren she and her husband had lived continuously in the Baker Hotel since 1931. At the beginning they occupied two rooms in the southeast corner on the thirteenth floor of the hotel for which they paid a rental of $150.00 per month. In 1936 they moved into three rooms in the northwest corner on the same floor of the hotel for which they paid a rental of $300.00 per month. In the latter part of 1939 or the early part of 1940 Mrs. Perren began discussions with Mr. Baker relative to the occupancy of four additional rooms adjacent to the suit then occupied by her and her husband. She testified in substance that she had been in ill health for more than 30 years and had been under the care of doctors since she was 17 years of age; that she wanted to buy a home prior to the time she arranged with Mr. Baker in 1940 for the additional rooms but her husband did not feel that her physical condition was such as to permit her to supervise a home; that she then conceived the idea of fixing up an apartment in the hotel according to her own designs so that she could occupy it like a house, with one of the additional rooms to be used by Mr. Perren as his office; that she tried to induce Mr. Baker to fix up the apartment for her at the expense of the hotel but he declined to do so; and that she then decided, with the consent of her husband, to fix the apartment like she wanted it and she did so at an expense of over $12,000.00. She testified in detail as to the alterations which she made and the itemized expense incurred, some of the major items being the installation of air-conditioning, plastering, sound proofing, wiring, hardware, wood-work, carpets, plumbing, painting, etc.

With reference to her conversations with Mr. Baker concerning her agreement with him, Mrs. Perren testified that she told Mr. Baker while discussing the matter of repairing the apartment at her own expense that she wanted the rooms as long as she lived. Her testimony was in part as follows:

'Q. What conversation did you have with Mr. Baker when Mr. Baker advised you that he wouldn't pay for fixing up the apartment like you wanted? A. I asked him if he would give me permission to fix it up like I wanted if Mr. Perren would allow me to, and he said he would have to know what I was going to do; that if everything was all right with the people in the hotel it was all right with him, and I told him if I had to stay until I died it was livable; * * *

'Q. What did you tell Mr. Baker with reference to how long you wanted the apartment? A. Until the day I died. * * *

'Q. When you told Mr. Baker you wanted to rent that apartment until you died, what did he say to you? A. I just told him-is that all right?

'Q. Sure, tell us what you said and what he said. A. It would be much better for me in here than a hospital and sometimes I would have to stay in bed and I said, 'I can stay in this room and I can have my books and my radio and have air conditioning and I would be comfortable and maybe I wouldn't even have to have a nurse and Mr. Perren could help look after me', and if I had to have a nurse I was fixed for it, and I said, 'If something was to happen to me, I wouldn't want Mr. Perren to walk out and give it up', and I would want him to stay there and keep it if anything happened to me suddenly. * * *

'Q. Tell us what you said to Mr. Baker with reference to how long you wanted it? A. I said just the same thing. 'I will probably die right in this corner bedroom.' The doctors told me I had to have a certain amount of rest, and I am getting older and he told me I was doing too much as it was, and I should stay in bed and take better care of myself, and I said, 'I would be much happier.'

'Q. When you told Mr. Baker you wanted that apartment for the rest of your life, what did he say? A. He finally agreed to it.

'Counsel for appellee: I object to that.

'Counsel for appellant: Mrs. Perren, I know he agreed to it.

'Counsel for appellee: Just a second.

'The Court: Counsel, remarks like that just are not proper.

'Counsel for appellant: I was trying to explain to her that would be a short-hand rendition, and I wanted her to state the conversation. * * *

'Q. The question is what did he say in so far as you can recall? A. That has been ten years ago; that is a thing I am unable to tell word for word. All I know, he finally agreed-I don't know how to tell it. * * *

'Q. Did you have an agreement at that time on what you would pay per month for the apartment? A. Oh, yes.

'q. And that was $500.00 per month? A. That's right. * * *

'Q. Would you have gone ahead with these repairs to this apartment but for what Mr. Baker told you? A. I don't think I am that dull or stupid.

'Q. Your answer is no, you would not? A. Yes sir, I wouldn't be that dull or stupid.'

Appellant testified that his wife handled the negotiations with Mr. Baker in 1940 for additional space in the hotel, that he discussed the matter with her and consented to and approved the arrangements she had made. On cross-examination he admitted receiving three letters from Mr. Baker during the early part of 1941 concerning such arrangements. In the first of these letters, dated January 18, 1941, it was stated that the purpose thereof was to 'confirm our verbal discussion regarding the arrangements in connection with the revamping and redecorating of your suite.' Among other commitments on the part of the hotel, this letter recited: 'If you decide to install the air conditioning equipment, it is understood that at any time you move from the hotel that the motor used in connection with this installation belongs to you and also the hotel agrees to pay the equivalant under this contract, of an individual unit amounting to $250.00.' The letter concluded with this paragraph: 'Please sign the duplicate copy of this agreement in the space provided for your acceptance.' The duplicate copy was signed by appellant as requested, In a subsequent letter of March 31, 1941 supplementing the letter of January 18, 1941, Mr. Baker stated that the hotel would do the necessary plastering of the new suite, etc., and 'We...