Smith v. J. Weingarten, Inc.
| Decision Date | 17 October 1938 |
| Docket Number | No. 3368.,3368. |
| Citation | 120 S.W.2d 878 |
| Parties | SMITH v. J. WEINGARTEN, Inc., et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Harris County; Ewing Boyd, Judge.
Suit by J. Weingarten, Inc., and others against Ed C. Smith to recover a sum of money paid by the plaintiff at the time of the execution of a lease and to recover a portion of monthly rental paid in advance by the plaintiff for month during which the leased premises were destroyed by fire, wherein the defendant filed a cross-action. Judgment for the plaintiffs, and the defendant appeals.
Judgment affirmed in part and reversed in part, and rendered.
Gill, Jones & Tyler, of Houston, for appellant.
Roy L. Arterbury, of Houston, for appellees.
By written contract dated the 9th day of August, 1920, duly executed by appellant, Ed C. Smith, as lessor, and appellee J. Weingarten, Inc., a corporation, as lessee, appellant leased to appellee certain premises in the city of Houston for a period of ten years, beginning the 15th day of August, 1920. The total consideration recited in the contract was $126,000 payable in monthly installments in advance. Appellee was also to pay the ad valorem taxes assessed against the property and to keep it insured at its expense. We quote as follows from the contract — the numbering is ours:
(1) "The Lessee shall have the right to alter, change the re-partition and remodel the interior of said building so as to make the same more desirable for or convenient to the needs and purposes to which they may desire to put the same, provided that the Lessee shall, at the expiration of the lease, put the premises back in the same condition that they are in at the time possession hereof is delivered to it, unless the Lessor indicates that he desires it be not done."
(2) "In the event the buildings or improvements on said premises shall be totally destroyed by fire during the existence of this lease, then it is agreed that the rights of all parties hereunder shall be at an end, and the Lessor on the one hand being absolved from any further obligations to the Lessee hereunder, and the Lessee shall be released from any further obligation to pay rent."
(3) "As a part of the consideration for the execution of this lease on the part of the Lessor, and to secure its performance in all its details on the part of the Lessee, the Lessee hereby has this day paid unto said E. C. Smith the sum of ($3000) three thousand dollars, being the first three months rental due and obligates themselves to pay the stipulated monthly rental every thirty days after delivery of premise, in this manner keeping their rent paid three months in advance in lieu of furnishing Lessor with a security bond."
The $3,000 named in sec. 3 of the contract was in fact paid. Appellee held possession of the premises and duly paid its rent, to the end of the original lease; on the expiration of the ten year period, the parties, from time to time, renewed in writing the original contract, except as to the amount of the monthly rental, which during the depression was reduced to $600 per month. Appellee continued in possession of the leased premises until the 15th day of June, 1936, when they were totally destroyed by fire. On the 7th day of June before the fire, this being the due date of the monthly rental, appellee paid appellant, as rent paid in advance, the sum of $600. On the date of the fire appellant had in his possession the $2,000 paid him on the 9th day of August, 1920.
After the fire on the theory that appellant was liable to it for the $2,000 originally paid to him on the 9th day of August, 1920, appellee demanded the return of this sum of money, and $450 of the $600 paid on the 7th day of June. Payment was refused by appellant. On the theory stated, appellee on the 6th day of August, 1936, instituted this suit praying for judgment against appellant for the sum of $2,450 with interest and costs of court. Appellant answered by pleas of limitation; and by special plea of the provisions of the contract quoted above; and by way of cross action that appellee had made certain changes in the premises, and in making these changes had removed fixtures from the building of the value of $5,000, which, under the terms of the contract, it was bound to return to appellant.
The trial was to a jury but on the conclusion of the evidence the court withdrew the case from the jury and rendered judgment in favor of appellee against appellant for the $2,450 sued for with interest, and against appellant on its cross action. From the judgment appellant duly prosecuted its appeal to the Galveston Court of Civil Appeals; the case is on the docket of this court by order of transfer by the Supreme Court.
Opinion.It is our conclusion that the $2,000 paid by appellee to appellant and retained by him, on the date of the execution of the original contract, was paid as "advance rent." This conclusion denies appellee's contention that the $2,000 was deposited with appellant only as "security" for the enforcement of the contract in lieu of a bond, and that it was in no sense "advance rent." By the express terms of the contract the rent was paid in advance for two months; this payment by the express language of the contract was dominated "advance rent." The language of the contract brought forward by appellee — "in lieu of furnishing a bond" — was used simply in explanation of the advance payment of the rent; it explained why the rent was paid in advance. On this conclusion appellant had in his hands on the date of the fire $2,450 "advance rent."
We overrule appellant's contention that appellee's cause of action, if any it had, was barred by the statutes of limitation; as to the $450 claimed as advance rent, it was paid to appellant only about two months prior to the institution of this suit. As to the $2,000 paid on the execution of the original contract, on the terms of the original contract, renewed in writing from year to year, appellee's cause of action for its recovery — if any it had — matured only on the expiration of the contract, caused by the fire which totally destroyed the property.
But under our general jurisprudence appellant had no cause of action for the return of the advance rent. In Tarkovsky v. George H. Hess Co., 64 Ill.App. 513, the lease contract in issue contained the following provisions:
"Upon the destruction of said premises by fire, the term hereby created shall cease and determine."
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