Stoma v. Filgo, 10598.

• Decision Date: 03 April 1930
• Docket Number: No. 10598.,10598.
• Citation: 26 S.W.2d 1100
• Parties: STOMA v. FILGO et al.
• Court: Texas Court of Appeals

26 S.W.2d 1100

STOMA v.FILGO et al.

No. 10598.

Court of Civil Appeals of Texas. Dallas.

April 3, 1930.

Appeal from County Court at Law, No. 1, Dallas County; Paine L. Burk, Judge.

Suit by J. B. Stoma against L. R. Filgo and others.Case was dismissed as to defendantR. R. Holmes.From a judgment for remaining defendants in the county court, on certiorari from justice's court after judgment for plaintiff, plaintiff appeals.

Reversed and rendered.

Read, Lowrance & Bates, of Dallas, for appellant.

Reid & Erhard and William J. R. King, all of Dallas, for appellees.

VAUGHAN, J.

Appellant, J. B. Stoma, instituted this suit in one of the justice courts of precinct 1 of Dallas county, against L. R. Filgo, R. R. Holmes, and Wayne Plummer, to recover the sum of $150 with interest, alleged to be due appellant by said defendants on a written lease contract.Judgment was rendered in that court in favor of appellant for $151.27 against L. R. Filgo and Wayne Plummer, and the case was dismissed as to R. R. Holmes, who was not served with citation.Under writ of certiorari obtained by appellee, L. R. Filgo, the case was moved to and tried by the county court at law No. 1 of Dallas county, the trial so had resulting in a verdict and judgment in favor of appellees, L. R. Filgo and Wayne Plummer, from which appellant has duly prosecuted his appeal to this court.

By appropriate allegations appellant sought to recover two delinquent monthly installments of $75 each, alleged to be owing him under a written lease contract made by appellant with appellees and one R. R. Holmes, dated November 21, 1927, covering a period of 50 months beginning December 21, 1927, and ending February 20, 1932.Appellant further alleged: That the rent under said lease was payable at the rate of $75 per month on the 21st day of each month during said lease period; that the two installments of rent sued for became due on the 21st of July and 21st of August, 1928, respectively; that the premises so leased to appellees and R. R. Holmes was owned by appellant and described as follows: Situated in the city of Dallas, state of Texas, and being the oil and gas station located at 5134 Richards avenue in said city of Dallas, Tex., at the corner of Richards and Henry avenues.As to appellees' answer, it is only necessary to state that same contained a general denial and special pleas alleging: (a) That as an inducement to said Filgo to sign said lease contract appellant, acting through and by his agent, Sam Cusha, represented that a landlord's lien was retained upon all of the equipment situated upon the leased premises for the payment of rentals and lease money as same accrued; that he(Cusha) would protect all parties himself on the contract; that appellees relied upon said representations and signed said lease agreement and became sureties thereon; that mortgages given thereon by subsequent tenants were allowed to become fixed as prior liens upon and against said property in preference to the landlord's lien, due to the negligence and fault of appellant's agent.Cusha; that by Cusha's failure to protect said Filgo, he was discharged from liability on said contract; that thereafter, with the knowledge of Cusha and Stoma, said lease was transferred, sold, and possession of the premises given, without the knowledge and consent of Filgo, by one R. R. Holmes to one John Burrage, and said Stoma, through his agent Cusha, represented that he would get an additional surety on said contract by the name of Miss Minnie Burrage, a sister to the then occupant of the lease premises in question; that said agent Cusha failed to obtain the signature of Miss Minnie Burrage, allowed the station to be transferred and sold again without obtaining additional surety on said lease contract, all of which consisted of fraudulent representations, which deprived appellee Filgo of additional security and constituted a discharge of his liability on said lease contract.

The judge of said county court refused appellant's request for peremptory instruction and submitted the case on special issues, said issues and answers thereto being as follows:

"No. 1: At the time of the sale, if any, to John Burrage of the property covered by the lease in this suit, did Sam Cusha as agent for J. B. Stoma agree with L. R. Filgo that he would procure the endorsement of said lease by Miss Minnie Burrage?Answer, `Yes.'

"No. 2: Did Sam Cusha as agent for J. B. Stoma represent to L. R. Filgo that the landlord's lien would be preserved on the property covered by the lease in this case for the purpose of protecting all parties, including said Filgo, against loss or subsequent encumbrance of such property?Answer, `Yes.'"

On this verdict judgment was rendered in favor of appellees that appellant take nothing by his suit against them.

Of the several assignments of error presented by appellant, it is only necessary to discuss the one presenting as error the refusal of the trial court to instruct the jury to return a verdict in appellant's favor.Following are the uncontroverted material facts found by this court to have been established by the evidence: That appellant by a written lease contract dated the 16th day of February, 1927, leased to one J. H. Cogswell for a period of five years the oil filling station described in his pleadings, said lease term beginning February 21, 1927, and ending February 20, 1932, at a rental of $75 per month; that said Cogswell on April 13, 1927, with appellant's permission, transferred the unexpired term of said lease to one W. L. Edwards; that said Edwards on May 5, 1927, transferred the then unexpired term of said lease to appellees, L. R. Filgo and Wayne Plummer; that on the 21st day of November, 1927, the above lease contract was canceled by the execution of a new lease contract by appellant to appellees and one R. R....