Remington Rand, Inc. v. Sugarland Industries

• Decision Date: 25 June 1941
• Docket Number: No. 2321 - 7531.,2321 - 7531.
• Citation: 153 S.W.2d 477
• Parties: REMINGTON RAND, Inc., v. SUGARLAND INDUSTRIES.
• Court: Texas Supreme Court

153 S.W.2d 477

REMINGTON RAND, Inc., v. SUGARLAND INDUSTRIES.

No. 2321 - 7531.

Commission of Appeals of Texas, Section B.

June 25, 1941.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by Remington Rand, Incorporated, against Sugarland Industries, to recover rentals claimed to be due on certain accounting machines leased to defendant. Judgment for defendant was affirmed by Court of Civil Appeals, 122 S.W.2d 729, and the plaintiff brings error.

Judgments of district court and Court of Civil Appeals reversed, and judgment rendered for plaintiff.

John Schuhmacher and H. Fletcher Brown, both of Houston, for plaintiff in error.

Peareson & Peareson, of Richmond, and Joe Corman, of Sugarland, for defendant in error.

TAYLOR, Commissioner.

Remington Rand, Inc., sued the Sugarland Industries for rentals alleged to be due and unpaid on accounting machines furnished defendant under a written contract dated September 2, 1932, and purchase order No. 572.

The following (omitting formal parts and provisions not material here) are the provisions of the contract, all italics used therein, and in this opinion, being ours:

"Remington Rand, Inc., herein styled Lessor, hereby agrees to install at the place of business of the undersigned Lessee * * * and hereby leases, and the Lessee hereby rents the equipment hereinafter specified, upon the terms and conditions herein set forth, it being expressly understood * * * said equipment may be removed by the Lessor or its agents at any time after the termination of this contract as herein set forth.

                   "2 Automatic Key Punches @
                $15.00 per mo.                   $30.00
                  * * *
                   "1 Alphabetical Key Punches @
                $35.00 per mo.                   $35.00
                  * * *
                   "1 Sorters (non-counting) @
                $35.00 per mo.                   $35.00
                   "1 6 Unit Printing Tabulators
                $195.00 per mo.                  $195.00
                                                 _______
                     Total Monthly Rentals       $295.00
                   * * *
                

"Each multiple translator supplied in excess of those to be furnished without extra charge as above provided shall be charged for at the rental price in effect therefor at the time the order for such Translator is received. Such rental price shall be paid in equal monthly payments.

* * *

"Additional equipment will be installed and leased under the terms and conditions hereof at the rates of rental therefor in effect at the time the order for such equipment is received.

* * *

"Maintenance.

"In cities where the Lessor has an office, or headquarters of a representative, the Lessor shall keep the equipment in working order and make all necessary repairs thereto, except as hereinafter provided, * * * If the Lessee uses with machines covered hereby, cards that have not been purchased from Lessor, the Lessee agrees to pay Lessor the cost of repairing and maintaining such machines. * * *

"Termination.

"This lease shall continue in force with respect to each machine installed in accordance with the provisions hereof for the term of one (1) year from the date each such machine is placed on rental. This Lease may be cancelled at the expiration of the said term of one (1) year provided thirty (30) days notice in writing of the desire to terminate the same shall have been sent by registered mail by either party to the other before the expiration of eleven (11) months after the date each such machine is placed on rental. Rental on each machine installed is to be paid monthly for a minimum period of twelve (12) months, unless this Lease is terminated by the Lessor.

"If at the expiration of eleven (11) months, as heretofore provided, a cancellation notice has not been served this contract becomes a continuous automatic yearly renewal contract. Rental on each machine covered by this contract to be paid monthly for a minimum renewal period of twelve (12) months, unless this Lease is terminated by the Lessor. Discontinuance of equipment on this renewal basis can be effected provided notice is sent * * * by either party to the other before the expiration of eleven (11) months after the date renewal contract period became effective.

* * *

"General.

* * *

"No representation or statement made by any employee, agent or representative of the Lessor, shall be binding upon the Lessor as a warranty or otherwise except as expressly set forth herein.

* * *

"Terms of Payment.

"The rental upon each machine shall accrue from the date of the completion of the installation hereof in working order at the place of business of the Lessee as above provided, and upon each Multiple Translator in excess of those provided for without extra charge in the contract from the first day of the month following the month in which it is shipped by the Lessor to the Lessee.

"All rentals are due and payable on the last day of each and every month. All invoices for cards, accessories, supplies or other charges are due and payable upon receipt thereof. * * *.

                    "(Signed) The Sugarland Industries
                                    Lessee
                                  "By Walter C. Burer —
                                     Auditor
                "Witness: P. F. O'Deay
                "Accepted Sept. 2, 1932
                  "Remington Rand, Inc
                      "By H. R. Russell, General Manager
                          Powers Accounting Machine Division"
                

The contract was signed by defendant and the witness O'Deay on August 22, 1932, and was by O'Deay sent to plaintiff, and was accepted by plaintiff September 22, 1932.

"Order No. 572 (omitting formal and immaterial parts) dated December 7, 1933, whereby lessee ordered the articles therein enumerated, is as follows:

                "Quantity         Articles            Price
                One (1)   Model 2-620 Alphabetical
                          Tabulator with
                          three units, grand total
                          device,                     $225.00
                Two (2)   Multiple Translators —
                           No charge
                

"This machine to apply on our present contract.

"Please deliver this machine to 1113 Vine Street to be picked up by our truck. Thanks."

The purpose of the suit was to collect unpaid rentals in the sum of $2,176.12 alleged to have accrued upon machines furnished under the terms of the foregoing contract and purchase order, together with interest from the last days of the respective months in which the aggregate rentals accrued.

The controversy between the parties arose out of an attempted cancellation by defendant of the contract. On June 15, 1934, defendant gave plaintiff written notice that it had elected to cancel the lease on September 1, 1934. The request for cancellation was not acceded to by plaintiff as being effective to terminate further obligation on the part of defendant to pay rental. Each machine described in the contract, with the exception presently to be noted, remained on installation subject to the use of defendant until January 1, 1935. Upon refusal of defendant to pay the rentals alleged to have accrued according to the terms of the contract, this suit was filed.

Two of the machines described in the contract were removed by agreement of the parties, the tabulator, about June 1, 1934, and one of the automatic key punches about September, 1933. No rental is sought for these.

Plaintiff alleged with respect to the rentals due on the alphabetical key punch and the sorter (each of which was installed, or placed on rental, on January 16, 1931) that, having come under the yearly renewal provision of the contract at the rate of $35.00 per month each, defendant was obligated upon same for the months of September, October, November and December of 1934, and for the first 16 days of January of 1935; and that with respect to rentals due for the automatic key punch (installation completed January 2, 1932), it also having come under the automatic renewal provision at $15 per month, defendant was obligated upon same for the months of September, October, November and December of 1934, and for the first 2 days of January, 1935. The total of the rentals sued for by plaintiff for the machines described in the contract is $316.12.

The principal item sued for is the rental alleged to have accrued upon the alphabetical tabulator described in the purchase order. Plaintiff alleged it was installed and placed on rental on May 1, 1934, and that rentals were paid thereon at the stipulated rate of $225 per month for only four months of the one year term after date of installation, and that defendant failed and refused to pay rentals accrued thereon for the remaining months of such term (September, October, November and December of 1934 and January, February, March and April of 1935), at the rate of $225 per month. An itemized exhibit in evidence shows the aggregate accruals, under plaintiff's construction of the contract, to be $1,240 for 1934, and $936.12 for 1935, to May 1st of that year. The total ($2,176.12), with interest, was sued for.

Defendant alleged that on or about June 15, 1934, it gave written notice to plaintiff that it desired to and did terminate and cancel all then existing contracts, "if any" as of September 1, 1934, After setting out the termination provisions of the contract it alleged that these provisions, "if ever in force," covered the automatic key punch, the sorter and the alphabetical key punch described in said contract; that "said machines" were installed and placed on rental under its terms on September 2, 1932, and that these machines, "or instruments substituted in the place thereof, were used by the defendant until September 1, 1934, * * *."

Defendant alleged as to the purchase order, among other things, that if its "words, `This machine to apply on our present contract,' had or have any meaning," it was that "said machine should replace the tabulator removed (the one described in the contract) and should be substituted therefor with the same force and effect as if * * * placed on use at the date the contract tabulator was placed on use," which date it alleged to be the date of the contract; that if any connection existed between the purchase order and the contract, which was...