Racke v. Anheuser-Busch Brewing Ass'n.

• Citation: 42 S.W. 774
• Parties: RACKE v. ANHEUSER-BUSCH BREWING ASS'N.
• Decision Date: 04 November 1897
• Court: Court of Appeals of Texas

42 S.W. 774

RACKE v. ANHEUSER-BUSCH BREWING ASS'N.

Court of Civil Appeals of Texas.

November 4, 1897.

Appeal from Harris county court; John G. Tod, Judge.

Action by Minnie Racke against the Anheuser-Busch Brewing Association to recover rents. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Coleman & Ross, for appellant. Fisher & Sears, for appellee.

GARRETT, C. J.

This action was brought by appellant against the appellee for the recovery of rents for a storehouse in the city of Houston, leased by the appellant to the appellee on December 30, 1892, for a term of one year, with the privilege of an additional two years on the same terms and conditions as the one year's term. The lease was in consideration of the sum of $600 for the year ending December 31, 1893, payable in installments of $50 per month in advance. The appellee was in possession of the premises by subtenants, who held over until January 13, 1894; and, by virtue of this holding over, the appellant contends that appellee was liable for rents for the additional two years mentioned in the agreement for lease. The case was tried below by the court, without a jury, and judgment was rendered in favor of appellee, that plaintiff take nothing by her suit, and for costs. During the month of December, 1893, the appellee notified the appellant verbally that it would not take the premises any longer than one year, and on December 29, 1893, gave the appellant written notice that it would not take them. It also notified its subtenants to vacate the premises. Appellant brought a suit on February 22, 1894, against the appellee, upon the same contract and tenancy by holding over, to recover rents for the premises for the months of January and February, and on May 9, 1894, filed an amended original petition in said suit, to recover rents for five months, to wit, January, February, March, April, and May, at the rate of $50 per month, and alleged that the appellee had held the premises over for 13 days, more or less, without any special agreement between them, except that set out in the lease and implied by law, and that, by such holding over, the appellee became liable, and promised the appellant that it would hold over the said premises for the said term of two years from January 1, 1894. The appellee answered in that suit by a general demurrer and general denial. There was a trial by jury, and the court instructed the jury, at the request of the appellee, that if they believed from the evidence that previous to January 1, 1894, defendant, through its agent, Louis Illmer, notified the plaintiff that said association declined to continue on under the lease privilege after the first year, and that thereupon plaintiff gave said Illmer reasonably to understand that she would allow the occupant of said premises to continue on in such possession as her tenant, then the defendant association would not, under the lease contract in evidence, be liable for rents subsequent to December 31, 1893. The jury were also fully charged upon the question of holding over in the general charge of the court....