Smith v. Navarro

• Decision Date: 19 March 1934
• Docket Number: No. 2522.,2522.
• Parties: SMITH v. NAVARRO.
• Court: Texas Court of Appeals

Page 794

69 S.W.2d 794

SMITH v. NAVARRO.

No. 2522.

Court of Civil Appeals of Texas. Beaumont.

March 19, 1934.

Appeal from Harris County Court; Nat H. Davis, Judge.

Action by A. R. Navarro against J. W. Smith. From a judgment for plaintiff, defendant appeals.

Affirmed.

Hardway & Cathey, of Houston, for appellant.

Sewell, Taylor, Morris & Garwood, of Houston, for appellee.

COMBS, Justice.

This appeal is from a judgment of the county court of Harris county, the appeal being originally to the Court of Civil Appeals at Galveston and the case was transferred to this court on equalization of the docket by the Supreme Court.

The suit was filed by appellee, A. R. Navarro, to recover the sum of $325 for two months rent alleged to be due under the terms of a written contract of lease entered into between the appellee, Navarro, as lessor, and appellant, Smith, as lessee. The case is before us on an agreed statement of facts. The written contract of lease was dated January 18, 1927, and was to run for a term of ten years, the appellant agreeing to pay for the first and second years an annual rental of $1,650 per year, for the third and fourth years $1,800 per year, for the fifth and sixth years $1,950 per year, for the seventh and eighth years $2,100 per year, and for the ninth and tenth years $2,250 per year. All rentals were to be paid in advance in monthly installments.

At the time of entering into the contract the property was unimproved, and appellee agreed to erect thereon for the use of appellant a brick building according to plans and specifications which were agreed to and attached to the contract. The lease contract contained the following provisions:

"IV. For the purpose of binding the lessee in this lease, the lessee has this day deposited, in escrow, with Federal Trust Company, the sum of $562.50, which sum shall be delivered to lessor upon the acceptance of the leased premises by lessee, and shall be held by lessor as security for the performance by lessee of his agreements herein contained. Lessor shall, however, during the time he holds said money, and provided that no default occurs by lessee, on account of which default this lease is terminated, pay to lessee interest on such sum of $562.50 at the rate of 5% per annum, which interest shall be payable semi-annually."

"V. In the event lessee makes default in the payment of any installment of rent due hereunder, as the same becomes due and payable, and such default continues for ten (10) days, then lessor shall have the option to declare the leasehold estate forfeited by lessee and may re-enter and take possession of said premises, and lessee agrees to deliver peaceable possession of said premises to lessor when demanded after such ten day period of grace. Upon the termination of this lease by default, lessor shall retain the said sum of $562.50 above referred to, as liquidated damages and not as a penalty, and all parties shall thereupon be released from this contract."

"IX. Lessor agrees to pay all taxes properly levied and assessed against the leased premises, and lessee agrees to reimburse lessor for one-half of the increase in taxes on the land value, if any, after the first year, and one-half of the increase of taxes on improvements, if any, after the second year. If lessee should refuse and fail for thirty (30) days after notice to pay his pro-rata share of said taxes paid by lessor as herein provided for, then such failure or refusal shall be deemed sufficient ground for a cancellation of this lease by lessor, such cancellation, however, to be made only at the option of lessor, and in the event of such cancellation, lessor shall retain the $562.50, as above provided, as liquidated damages."

The building was constructed according to agreement and appellant entered into possession of the property and occupied it until the 23d day of May, 1932, at which time, being in default for the payment of rents for a period of two months, he vacated the premises at the...