Walker Avenue Realty Co. v. Alaskan Fur Co.

• Decision Date: 06 July 1939
• Docket Number: No. 10844.,10844.
• Citation: Walker Avenue Realty Co. v. Alaskan Fur Co., 131 S.W.2d 196 (Tex. App. 1939)
• Parties: WALKER AVENUE REALTY CO., Inc., v. ALASKAN FUR CO., Inc., et al.
• Court: Texas Court of Appeals

Page 196

131 S.W.2d 196

WALKER AVENUE REALTY CO., Inc., v. ALASKAN FUR CO., Inc., et al.

No. 10844.

Court of Civil Appeals of Texas. Galveston.

July 6, 1939.

Rehearing Denied July 27, 1939.

Appeal from District Court, Harris County; Norman Atkinson, Judge.

Action by Walker Avenue Realty Company, Inc., against the Alaskan Fur Company, Inc., and another for breach of a contract to lease store space. From a judgment for the defendant, plaintiff appeals.

Affirmed.

Thos. H. Stone, of Houston, for appellant.

Fulbright, Crooker & Freeman and W. Ray Scruggs, both of Houston (James F. Bobbitt and M. C. Chiles, both of Houston, of counsel), for appellees.

MONTEITH, Chief Justice.

This is an appeal from a judgment of the district court of Harris County in an action by appellant, Walker Avenue Realty Company, Inc., plaintiff below, against appellees, Alaskan Fur Company, Inc., and F. L. Gould, defendants below, for damages for the alleged breach of a contract to lease store space in the West Building in Houston, Texas.

The suit was originally brought by Ike L. Freed, Simon Sakowitz and Tobias Sakowitz, the then owners of said building.

Prior to the trial the West Building was transferred to the Walker Avenue Realty Company, Inc. This company was made party plaintiff and as such has prosecuted the suit as the owner thereof. The parties to the suit will be designated in this opinion as in the trial court.

Plaintiff alleged that prior to August 6, 1932, there had been negotiations between the then owners of the West Building and defendants for a lease of certain space in said building; that on August 6, 1932, defendants submitted to Ike L. Freed a written proposal to lease said space under the terms and conditions therein set forth; that they secured the cancellation of a then existing lease on said premises from Hammersmith Bros., Inc., and promptly notified defendants of their acceptance of said proposal, and in pursuance thereto executed a lease in favor of defendants covering the space desired and tendered same to defendants. Plaintiff prays for damages for the loss of rentals it would have had a right to collect from Hammersmith Bros., Inc., under its sublease of space in said building, and in the alternative for rentals it would have been paid under its alleged lease with defendants.

Defendants answered by general and special demurrers and exceptions and by general denial. They pled both by special exceptions and special answer that plaintiff's alleged cause of action was in contravention of the statute of frauds; that no definite terms or space had been agreed upon by the parties; that plaintiff had refused to lease the space or furnish the conveniences originally negotiated for; that it had received no notification of an acceptance of their offer, and that they had, on August 31, 1932, withdrawn all offers and proposals theretofore made.

The case was tried to a jury, who, in answer to issues submitted, found, in substance, that defendants' proposal, dated August 6, 1932, was not accepted by the said Ike L. Freed and Simon and Tobias Sakowitz before it was withdrawn on August 31, 1932; that the parties had not agreed among themselves upon the terms and conditions of a lease contract for the space in question; that Hammersmith Bros., Inc., paid to Ike L. Freed and Simon and Tobias Sakowitz a valuable consideration for the cancellation of its lease contract, and that a re-draft of a lease contract for such space was not signed by Ike L. Freed and Simon and Tobias Sakowitz prior to the delivery to them of a letter dated August 31, 1932, notifying them of the withdrawal by defendants of their written proposal dated August 6, 1932; that Freed and Gould were not in agreement as to the space in the basement of the West Building to be covered by said lease contract, and that defendants did not know of the existence of the lease to Hammersmith Bros., Inc., when the proposal of August 6, 1932, was made and left with the owners of the West Building.

Based on the answers of the jury to the issues submitted, judgment was rendered by the trial court that plaintiff, Walker Avenue Realty Company, Inc., take nothing against defendants, Alaskan Fur Company, Inc., and F. L. Gould, and that each of said defendants be discharged and absolved from all liability.

On August 6, 1932, F. L. Gould delivered at the office of Ike L. Freed in the West Building the following written proposal:

          "Alaskan Fur Company
                              "Reliable Furs
                "606 Main Street
                "Houston, Texas.               F. 8188
                "Gentlemen:            August 6, 1932
                

"The following is our final proposal with reference to the lease which we have been discussing:

"1. We will pay you $1,000.00 per month, for a five year lease.

"2. Rent will start as of January 2, 1933.

"3. In case the lease is cancelled with a notice of three months at the end of two years, you will pay us $6,000.00 to help defray our expense of moving and installing a new cold storage vault.

"4. We will build our own cold storage vault, and handle our own financing of the same.

"5. We will pay you $500.00 for the furniture and fixtures now in the store, which also includes 2 balconies.

      "Very truly yours
                          "Alaskan Fur Company, Inc
                          "By F. L. Gould
                             "F. L. Gould, President."
                

The notation: "Accepted August 8, 1932. Freed & Sakowitz, by Ike L. Freed", appears at the bottom of said proposal.

On August 31, 1932, defendants sent to plaintiffs' attorney the following letter: "This is to advise that the proposition and proposal with reference to the lease in the West Building as outlined in our letter of August 6, 1932, is hereby withdrawn. We will take the matter up with you from a different angle after we have received bids for the construction and engineering work."

The record shows that at the time of the submission of said written proposal the premises known as 819 Main Street, which is located in the West Building, and 1009 Walker Avenue, which is located in the West Building Annex, were under a sublease from J. M. Watson to Hammersmith Bros., Inc., at a monthly rental of $1,250, and that Hammersmith Bros., Inc., had subleased 1009 Walker Avenue to Theo. D. and John D. Polemanakos at a monthly rental of $250. Both of said leases expired on December 31, 1933. By instrument dated August 8, 1932, Hammersmith Bros., Inc., assigned to Ike L. Freed and Simon and Tobias Sakowitz its interest in both of said leases. The instrument recited a consideration of $1,000 cash, $1,200 in notes, and the monthly rental due by Polemanakos.

Plaintiff's case is based solely upon the written proposal made by defendants on August 6, 1932, and upon its acceptance by plaintiff, in writing, prior to its withdrawal.

The issues to be determined are, first, whether a lease agreement existed between plaintiff and defendants upon which relief could have been granted, and second, whether, if a contract was established by the evidence, it was within the statute of frauds, and if so, whether such facts existed as would justify a court of equity in taking the case out of the operation of the statute of frauds.

Article 3995 reads as follows:

"Writing required.— No action shall be brought in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized: * * *

"4. Upon any contract for the sale of real estate or the lease thereof for a longer term than one year * * *".

The authorities are uniform in holding that to comply with the statute of frauds the written memorandum or proposal must within itself or by reference to other writings, and without resource to parol evidence, contain all the elements of a valid contract, including an identification of both the subject matter of the contract, Osborne v. Moore, 112 Tex. 361, 247 S.W. 498, Smith v. Griffin, 131 Tex. 509, 116 S.W.2d 1064; 20 Tex.Jur., 309, and the parties to the contract, 27 C.J., section 239, page 275, and section 437, page 383, and note in 70 A.L.R. 196, and authorities therein found.

That the written proposal in question is not sufficient to identify the premises to be leased is clearly shown by the following authorities: Osborne v. Moore, 112 Tex. 361, 247 S.W. 498; Penn v. Texas Yellow Pine Co., 35 Tex.Civ.App. 181, 79 S.W. 842, writ dismissed; Cantrell v. Garrard, Tex.Com.App., 240 S.W....