Weinstein v. Harrison

• Decision Date: 26 October 1886
• Citation: 1 S.W. 626
• Parties: WEINSTEIN v. HARRISON and another.
• Court: Texas Supreme Court

1 S.W. 626

WEINSTEIN v. HARRISON and another.

Supreme Court of Texas.

October 26, 1886.

Appeal from district court, Marion county.

Geo. T. Todd, for appellant, J. Weinstein.

GAINES, J.

This suit was brought in the justice's court originally by W. B. Harrison, one of the appellees, to recover of appellant $60 as rent of certain premises in the city of Jefferson, due under a verbal lease. Appellant pleaded, under oath, that he leased the premises of appellees jointly, and that W. B. Harrison was not entitled to recover in the capacity in which he sued. Plaintiff replied in writing to this plea, admitting the fact set up, but stating that "W. B. Harrison was the representative of J. C. Harrison in the management of said property, collection of rents," etc., and asking that J. C. Harrison be joined as plaintiff if the court should think him a necessary party. The cause, from this time, proceeded in the names of both appellees. Appellant also pleaded an offset or counter-claim, but appellees recovered in the justice's court the amount claimed by them. Appellant then appealed to the district court, and, on a trial de novo in the latter court, appellees obtained a judgment for the same sum.

It is assigned as error that the court should have dismissed the suit upon the hearing of the plea in abatement. One tenant in common or joint tenant cannot maintain a suit for the recovery of rent when the contract is joint, and the rent is to be paid to them jointly. Freem. Co-tenancy, § 352. It is also held in May v. Slade, 24 Tex. 205, that tenants in common must join in actions of trespass relating to the possession, and that the misjoinder of one of them could be taken advantage of by plea in abatement, or by exception, if the defect was apparent upon the face of the petition. But the opinion in that case also clearly indicates that the defect can be cured by amendment making the co-tenant who has not sued a party plaintiff to the action. The record before us shows that J. C. Harrison joined in the prosecution of the suit as plaintiff, after the plea in abatement was presented, and it was not error in the court below to permit the case to proceed to judgment on the merits.

Appellant also pleaded, in offset and reconvention, damages to the amount of $164.07 alleged to have accrued to his stock of goods by reason of a want of repair of the building for the rent of which the suit was brought, and introduced evidence tending to show a notice to appellees to...