Tays v. Ecker

• Decision Date: 17 January 1894
• Citation: 24 S.W. 954
• Parties: TAYS et al. v. ECKER.
• Court: Texas Court of Appeals

24 S.W. 954

TAYS et al. v. ECKER.

Court of Civil Appeals of Texas.

January 17, 1894.

Appeal from El Paso county court; Allen Blacker, Judge.

Action by John B. Tays and others against Samuel Ecker to recover rent of an hotel. From a judgment for defendant, plaintiffs appeal. Reversed.

N. W. Stanton, for appellants.

NEILL, J.

The rules prescribed for the preparation of a cause for submission having been fully complied with by the appellants, and there being no brief for the appellee on file, the statement in appellants' brief might be considered by us as acquiesced in as a proper presentation of the case, and we might found our decision thereon without an examination of the record as contained in the transcript, (Ct. Civ. App. Rules 40, 41, 20 S. W. ix.;) but, in view of another trial, we have considered the entire record.

This suit was brought in the county court of El Paso county by the appellants, John B. Tays, Amilia Tays, and Maria Rohman, against the appellee, Sam Ecker, on the 28th of February, 1890. The allegations contained in plaintiffs' petition are, substantially, that on the 31st day of December, 1886, plaintiffs made and entered into a written lease and agreement whereby they, in consideration of the sum of $16,000, to be paid as therein stipulated, leased and let to Sam Ecker certain real estate, and improvements thereon, situated in the city of El Paso, Tex., known as the "Old Central Hotel," for a term of 40 months, commencing on the 1st day of January, 1887, and expiring on the 30th day of April, 1890; that by said lease the appellee bound himself and agreed to pay appellants the sum of $16,000 in installments as follows: $400 at the end of each succeeding month thereafter until the termination of the lease, and the entire sum of $16,000 should be paid; that it was stipulated that each installment, after it became due, and demand made therefor, should bear interest at the rate of 12 per cent. per annum, and that an express lien was given in the lease on the property in the leased premises, to secure the payment of the rents. It was averred that the lease, which was attached to, and made a part of, plaintiffs' petition, contained divers other covenants and stipulations, providing for forfeiture of lease, the re-entry of appellants, etc., and that appellee "should lawfully, quietly, hold and occupy said premises during said term without let, hindrance, or ejectment, or molestation by appellants, their heirs, assigns, or any person lawfully claiming under them;" that appellee was in possession of the leased premises when the lease was executed, and pursuant thereto continued in possession thereof, and was in such possession when the suit was instituted, and that from time to time he paid appellants the installments of rent as they fell due, up to and including the entire month of November, 1889, and also $200 on December's rents for that year, but that thereafter he made default, and failed to pay for said month of December, and the installment due at the end of January, 1890; that appellants had made demand on appellee for said rents, as provided in the lease; and that he failed to pay the same. Appellants prayed judgment for $600, for costs of suit, etc. On May 19, 1890, the appellee filed his first amended original answer, wherein he interposed a general exception and a number of special defenses, among which are substantially, the following: That, if appellee ever rented the premises described in appellants' petition, he rented them for the purpose of entertaining and lodging travelers, and that appellants represented to appellee that said building and premises were suited for said purpose, and that he relied upon said representations, and believed them to be true, but that the same were fraudulent, false, etc., and that afterwards the city of El Paso, a municipal corporation, proceeded, under an ordinance of the city, to condemn said building as a nuisance, and ordered the same torn down, and that, therefore, appellee vacated the building, and tendered it back to appellants; that, if he ever rented said...