The Praetorians v. Simons
| Decision Date | 16 March 1945 |
| Docket Number | No. 13601.,13601. |
| Citation | 187 S.W.2d 238 |
| Parties | THE PRAETORIANS v. SIMONS et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Wm. M. Cramer, Judge.
Action for rent by The Praetorians, a corporation, against A. P. Simons, who filed a cross-action against D. B. Fielder for judgment over in event of a judgment for plaintiff against defendant. From a judgment for defendant and cross-defendant, plaintiff appeals.
Reversed in part, and otherwise affirmed.
J. W. Randall and Mack L. Vickrey, both of Dallas, for appellant.
Carrington, Gowan, Habberton, Johnson & Walker, J. W. Madden, Jr., and Hamilton, Hamilton, Turner & Hutchison, all of Dallas, for appellees.
The antecedent facts are these: On December 11, 1934, D. B. Fielder leased to A. P. Simons a three-story brick building at 1309-11 Jackson Street, City of Dallas, for five years, beginning January 1, 1935 and ending December 31, 1939, the agreed price being $28,800 for the period, payable monthly in advance—the first twelve months at $400 per month and the last forty-eight months at $500 per month—the building to be used by Simons for automobile parking, repairing and servicing purposes. On February 1, 1935, Fielder was indebted to The Praetorians, a corporation, in the sum of $84,551.96, evidenced by a promissory note secured by deed of trust lien on the lot and premises leased to Simons; and on March 14, 1935, as additional and collateral security for the indebtedness just mentioned, Fielder assigned to The Praetorians all rents due and to become due under the Simons lease. After the assignment, Simons paid The Praetorians all monthly rentals that accrued under the lease up to and including the month of June 1939. At that time rentals for the last six months of 1939, aggregating $3,000, had not accrued. At this juncture on June 9, 1939, Simons sold his garage business (Fielder consenting) to Mrs. Lou Schrum, who thereupon became Fielder's tenant, and contemporaneously Fielder released Simons, in writing, from all liability under the lease contract, and leased the premises to Mrs. Schrum for six years at a higher rental beginning January 1, 1940, the end of the Simons lease.
Subsequently, Fielder having defaulted in payments to The Praetorians, the latter declared the indebtedness, principal and interest, due, and on July 8, 1942, caused the trustee in the deed of trust to give notice that the real estate would be sold on August 4, 1942 (first Tuesday). With reference to and based upon this situation, on August 1, just preceding the sale, The Praetorians and Fielder entered into an agreement in writing, substantially as follows: Fielder agreed to the sale as advertised by the trustee, promised not to question its legality, and, in addition, agreed to pay the City of Dallas assessments against the property,—$440.40 for street paving and $4,077.07 for benefits received by the property incident to the widening of Field Street, agreed to execute and did execute and deliver a note payable to The Praetorians for $11,000 due on or before October 15, 1942, secured by trust deed on certain real estate (other than the real estate advertised for sale).
In consideration of the above, The Praetorians covenanted and agreed with Fielder that it would not in any manner "proceed against the said D. B. Fielder, his heirs or legal representatives, for a deficiency judgment for the difference for which the aforesaid property may bring at said sale and the amount of the indebtedness now due by the said D. B. Fielder to The Praetorians, and hereby expressly waives its right to any deficiency judgment and agrees that it will not make any claim or demand for such regardless of the amount for which said property may be struck off at said sale." The Praetorians purchased the property at the foreclosure sale on its bid of $50,000, which left $27,136.53 of the original indebtedness. Fielder complied fully with his agreement, subsequently paid the $11,000 note, and the lien against the property described in the deed of trust was released.
The record fails to disclose that The Praetorians made any demand upon Simons until March 19, 1943, when it instituted the present suit for recovery of $3,000, amount of the six months rental installments remaining unpaid in June 1939, when Simons sold his garage business to Mrs. Schrum and was released by Fielder from all liability under the lease contract.
The defense urged by Simons to the action brought by The Praetorians will appear later during the discussion; and, in addition to the defenses urged, Simons interpleaded D. B. Fielder, alleging the facts in regard to sale of the property to Mrs. Schrum, Fielder's consent thereto and his release of Simons from all liability under the lease contract, and Fielder's new lease contract with Mrs. Schrum. Simons prayed that in the event judgment should be rendered against him in favor of The Praetorians, that he have judgment over against Fielder for like amount. After the pleadings were all in, the case was submitted on an agreed statement of the facts under the provisions of Rule 263, Texas Rules of Civil Procedure (formerly Article 2177, R.C.S.). On the facts, as agreed to by the parties, the court found in favor of Simons, adjudging that The Praetorians take nothing, that Simons take nothing on his cross-action against Fielder, and that all costs be taxed against The Praetorians. The Praetorians duly excepted and perfected an appeal.
In its findings of fact the court adopted paragraphs 1, 2, 3 and 5 of the agreed statement, which embody the facts substantially as set forth in our preliminary statement; but the court refused to adopt paragraph 4 of said statement, "because same relates to evidence which was excluded." Paragraph 4 recites that Fielder and the representative of The Praetorians handling the transaction, would, if such evidence be admissible and they were permitted to testify over defendant's (Simons) objection truly testify that by the execution of the agreement dated August 1, 1942, they did not intend to discharge the assignment of rentals theretofore made by Fielder to The Praetorians, but did intend that The Praetorians should collect from Simons rentals under the assignment in addition to the amounts paid and to be paid (by Fielder) under the agreement (of August 1, 1942...
To continue reading
Request your trial
-
Ludvik v. James S. Jackson Co., Inc.
...886 (1941); Governor Apartments, Inc. v. Carney, supra; Loraas v. Connolly, N.D., 131 N.W.2d 581 (1964); and The Praetorians v. Simons, Tex.Civ.App., 187 S.W.2d 238 (1945). Counsel for Jackson testified that a deliberate effort was made to obtain the signature of Meyers' wife as president o......
-
Dicker v. Lomas & Nettleton Financial Corp.
...from his guaranty agreement. An agreement not to sue can be construed as a release and may be properly pled as a defense. The Praetorians v. Simons, 187 S.W.2d 238 (Tex.Civ.App. Dallas 1945, no writ); 76 C.J.S. Release § 44, p. 675. For summary judgment purposes the affidavit is deemed suff......
-
Patton v. Wilson, 11913.
...is submitted to a trial court upon agreed statement of facts all issues with regard to pleadings are immaterial. The Prætorians v. Simons, Tex.Civ.App., 187 S.W.2d 238; Abilene Hotel Corp. v. Gill, Tex.Civ.App., 187 S.W.2d 708; Shamrock Oil & Gas Co. v. Williams, Tex.Civ.App., 63 S.W.2d 570......
-
Perry v. Aetna Life Ins. Co. of Conn.
...are all the facts of the case.' Cited as authority for this statement is Bomar v. West, 87 Tex. 299, 28 S.W. 519; The Praetorians v. Simons, Tex.Civ.App., 187 S.W.2d 238. The instrument expressly provides that the parties stipulate and agree as to the following undisputed facts and no addit......