Stillman v. Youmans, 12701

• Decision Date: 01 April 1954
• Docket Number: No. 12701,12701
• Parties: STILLMAN et vir. v. YOUMANS et vir.
• Court: Texas Court of Appeals

Page 913

266 S.W.2d 913

STILLMAN et vir. v. YOUMANS et vir.

No. 12701.

Court of Civil Appeals of Texas, Galveston.

April 1, 1954.

Philip Stillman, and H. Fletcher Brown, Houston, for appellant.

H. A. Crawford, Houston, for appellee.

HAMBLEN, Chief Justice.

This suit was instituted in the District Court of Harris County by the appellants, Mrs. A. Stillman, joined by her husband, Philip Stillman, against the appellees, Mrs. J. Merle Youmans and her husband, George A. Youmans, to recover $2,350.00 rental alleged to be due under the terms of a lease contract between appellants as landlords and appellees as tenants. Appellants also sought judgment for alleged damages to the property not the result of ordinary wear and tear. Appellees denied appellants' allegations generally and alleged a constructive eviction during the term of the lease and payment of all rents due until the date of such eviction, and also filed a cross-action for damages because of the eviction. The cause was submitted to a jury and upon the verdict appellants recovered judgment for damages in the sum of $700.00 but were denied judgment for the rents sued for. No issues were requested by appellees on their cross-action. Neither litigant complains of the judgment for damages rendered in appellants' favor and this appeal is directed solely to the judgment denying appellants recovery of the rents.

Appellants assert thirty-six points of error, all of which present in varying phraseology and particularity two basic contentions, upon the correctness of either of which appellants contend the judgment as appealed from should be reversed and rendered in their favor. These contentions are: (1) that the facts alleged by appellees and the evidence offered support thereof, when viewed in the light most favorable to the judgment, do not as a matter of law constitute a constructive eviction, and (2) that even if the facts do constitute a constructive eviction, appellees having affirmatively plead the defense by way of avoidance of their obligation and being charged with the burden of establishing facts necessary to support such defense, failed to request the submission of issues to the jury which are necessary as a matter of law to establish a constructive eviction.

This Court is of the opinion that the appellants are correct in both of the contentions which they make and that all of their points of error as variously directed thereto must be sustained.

Upon the pleadings and the undisputed evidence appellants establish their right to the rents claimed to be due. The judgment denying recovery must find its support solely upon the theory of constructive eviction upon which appellees rely to avoid the obligation. The facts relied upon by appellees to support their defense of constructive eviction, when viewed in the light most favorable to the judgment, may be summarized as follows:

'Mrs. Youmans testified that (about March 10) * * * 1952, during regular business hours, when two customers were in the store, Mr. and Mrs. Stillman walked in and in a stage whisper said 'Honey, is your check in yet?', to which she replied that it was not, that she was not able to pay the rent yet, and asked if they could discuss it later, pointing to the customers back of her who were not at that time close enough to hear what was being said, if they were decently quiet, which they were, at first. Mrs. Youmans testified she then stated 'I want to discuss a number of things with you' and Mr. Stillman stepped up and said 'The rent is past due, Mrs. Youmans, and she said 'I know that and I am going to pay it, I have paid you for four years so don't be afraid I can't pay you now, but I can't pay you today' and she asked them to please leave and let her take care of her customers, that she wished to talk to them after closing time, there being two customers standing at her counter waiting for her to wait on them, who were pacing up and down and whom she had never seen before in her life and who were ready to make their purchases and whose time she should not waste. She asked the Stillmans to please leave and let her take care of them after working hours and after her customers left. She did not care particularly whether it was after working hours or not. The Stillmans however did not leave, though asked repeatedly, and finally she told them to leave and accentuated it by opening the front door and telling them to leave now, by which time she had lost all control and had forgotten about her customers and knew it was too late to save them, if they believed what they were hearing. At this time Mr. Stillman said 'Mrs. Youmans, it will not do your business any good to have a law suit against you and I am an attorney.' He walked up and down the front, waving his arms, talking so loud that ...