Rohrt v. Kelley Manufacturing Company

• Decision Date: 12 July 1961
• Docket Number: No. A-8375,A-8375
• Citation: 349 S.W.2d 95,162 Tex. 534
• Parties: E. J. ROHRT et al., Petitioners, v. KELLEY MANUFACTURING COMPANY, Respondent.
• Court: Texas Supreme Court

Page 95

349 S.W.2d 95

162 Tex. 534

E. J. ROHRT et al., Petitioners, v. KELLEY MANUFACTURING COMPANY, Respondent.

No. A-8375.

Supreme Court of Texas.

July 12, 1961.

Rehearing Denied Oct. 3, 1961.

McNees & McNees, Dallas, for petitioners.

Turner, White, Atwood, Meer & Francis, Lancaster Smith, with firm, Dallas, for respondent.

GRIFFIN, Justice.

This is a suit by respondents against petitioners on a written lease contract, whereby respondents seek to recover future rentals less amount of rents received from others after petitioners removed from the rented premises. The cause was tried upon stipulated facts. On a trial before the court without a jury, judgment was rendered that respondents take nothing. On appeal the Court of Civil Appeals reversed and rendered for respondents. 344 S.W.2d 904.

November 3, 1956, respondent, as landlord, rented to petitioners, as lessees, certain properties in the City of Dallas, Texas, for a term ending December 31, 1958. The consideration was for a total of $7,770 payable in monthly installments. The down payment was $270 plus $300 as payment for the last month of the term. The lease contract contained the following paragraph:

'That in case of default in any of the covenants herein, Lessor may enforce the performance of this lease in any modes provided by law and this lease may be forfeited at Lessor's discretion if such default continues for a period of ten days after Lessor notifies said Lessee of such default and his intention to declare the lease forfeited, such notice to be sent by the Lessor by mail or otherwise to the demised premises, and thereupon (unless the Lessee shall have completely removed or cured said default) this lease shall cease and come to an end as if that were the day originally fixed herein for the expiration of the term hereof, and Lessor, his agent or attorney shall have the right, without further notice or demand, to re-enter and remove all persons and Lessee's property therefrom without being deemed guilty of any manner of trespass, and without prejudice to any remedies for arrears of rent or breach of covenant; or Lessor, his agent or attorney may resume possession of the premises and re-let the same for the remainder of the term at the best rent Lessor, his agent or attorney may obtain, for account of the Lessee, who shall make good any deficiency, * * *'

Petitioners paid all rentals up through May 1, 1958. Petitioners being delinquent on the rental payments due June 1 and July 1, respondent on July 7, 1958, through its agent, wrote a letter to petitioners, the material part of which is as follows:

'Inasmuch as rent for the captioned property has not been received, we have been instructed to give you official notice of such default and the intention of the lessor to declare the lease forfeited. This notice fulfills the requirements set forth in Paragraph 8 of the lease contract.'

July 15, 1958, petitioners sent a check to respondents for the $300 rent due June 1, 1958.

July 31, 1958, petitioners, by their attorneys, wrote respondents a letter, the material parts of which are as follows 'This is to advise you and your principal that inasmuch as the lessee, Dwelle Electronics Company has been unable to completely cure such default within ten days after such notice, that, therefore, the said Lessee, Dwelle Electronics Company, considers that the lease ceased and came to an end on July 17, 1958, as if that were the day originally fixed in the lease contract for the expiration of the term of such lease, as is expressly set forth in said paragraph 8 of the lease contract. This is to further advise that the Dwelle Electronics Company no longer occupies the premises.'

At all pertinent times lessee was financially able to pay the rentals due under the lease contract.

After receiving the above letter from the petitioners, respondent took possession of the premises and re-let for the best rent obtainable. After applying the rents received to credit of petitioners, respondents claimed there was a balance due of $1,467.50, for which respondent sued, and also for attorney's fees.

The Court of Civil Appeals gave recovery to respondents upon the ground that petitioners had wrongfully abandoned the premises and breached the lease contract. Therefore, respondent was within his contract rights and his legal rights in re-entering and re-letting the premises, and was entitled to recover for the rental deficiency.

In this holding the Court of Civil Appeals was in error and we reverse that judgment, and affirm the judgment of the trial court.

(1) It is not disputed that the effect of respondent's letter of July 7, 1958, coupled with the failure of petitioner to pay the delinquent rentals within a ten-day period thereafter, resulted in a forfeiture of the lease contract as of July 17, 1958; and that respondent did forfeit. Unquestionably, respondent was given the right to take such action by the terms of the contract.

The question at issue is: Did such action by respondent relieve petitioners from liability for future rentals? We hold that it did.

(2) The contract provides that upon such forfeiture '* * * this lease shall cease and come to an end as if that were the day originally fixed herein for the expiration of the term hereof * * *.' That language is plain. Had the lease gone to the end of the term (December 31, 1958) there is no question but that lessee would have owed no future rentals. The obligation to pay rent would have ceased. Therefore, if the language last above quoted has any meaning, it...