Weiss v. Mitchell

• Decision Date: 11 February 1933
• Docket Number: No. 11105.,11105.
• Citation: 58 S.W.2d 165
• Parties: WEISS v. MITCHELL.
• Court: Texas Court of Appeals

Page 165

58 S.W.2d 165

WEISS v. MITCHELL.

No. 11105.

Court of Civil Appeals of Texas. Dallas.

February 11, 1933.

Rehearing Denied March 18, 1933.

Appeal from District Court, Dallas County; Robt. B. Allen, Judge.

Action by G. A. Mitchell against Martin Weiss. Judgment for plaintiff and defendant appeals.

Affirmed.

W. P. Donalson and Muse & Muse, all of Dallas, for appellant.

Coke & Coke and Thos. G. Murnane, all of Dallas, for appellee.

BOND, Justice.

This is an action by G. A. Mitchell against Martin Weiss. From a judgment of the lower court defendant makes his second appeal; the former appeal is reported in 26 S.W.(2d) 699.

On November 8, 1924, appellee, G. A. Mitchell, leased to appellant, Martin Weiss, two two-story brick buildings, situated in the city of Dallas, Tex., and known as 907 Elm street and 906 Pacific avenue, and 909 Elm street and 908 Pacific avenue. The buildings are adjacent to each other and extend north and south from Elm street back to Pacific avenue. The term of the lease was for five years, beginning January 1, 1925; the tenant, Weiss, agreed to pay to the landlord, Mitchell, as rent, $450 per month for the first two years, and $500 per month for the last three years. The covenants in the lease, regarded as material to this appeal, are as follows:

"2. That the lessee shall take good care of the property and its fixtures, and suffer no waste; and shall, at his own expense and cost, keep said premises in good repair, keep the plumbing work, closets, pipes and fixtures belonging thereto in repair; * * * during the hereby granted term of five years, and at the end of other expiration of the term shall deliver up the demised premises in good order and condition, natural wear and tear and damages by fire and the elements only excepted. * * *"

"5. That the lessee shall, in case of fire, give immediate notice to the lessor, who shall thereupon cause the damage to be repaired forthwith. * * *"

"6. * * * The said lessee hereby undertakes to make any repairs necessary for the occupation of the property known as No. 907 Elm Street and No. 906 Pacific Avenue at his own expense, and the lessor is to be at no expense whatever for either of said properties during the currency of this lease."

On April 27, 1927, fire damage was occasioned to the west building, known as 907 Elm street and 906 Pacific avenue, and the lessor immediately undertook to repair such damages. All rents were paid under the lease up to the time of the fire, and thereafter $277.75 was paid while the repairs were being made, as an agreed rent to June 1, 1927, and a like amount was thereafter tendered by the lessee to the lessor up to the time lessee abandoned the premises in July, 1929, which tender the lessor refused.

On June 1, 1927, after being advised by the lessor that the fire damage to the lease premises had been repaired, and the premises restored to its former condition, the lessee declined to accept the building, and immediately sought to cancel the lease, on the ground that the fire covenant had not been complied with by the lessor. Notwithstanding his efforts to cancel the contract, the lessee continued in possession of the lease premises, occupying and using the east building until July 10, 1929, when he abandoned it.

Appellant seeks a diminution of rents under the contract for the time he occupied and used the east building; a cancellation of the contract for the unexpired term of the lease; and, by way of a cross-action, for damage to his stock of goods, wares, and merchandise, all on account of the failure of appellee to repair the fire damage to the west building, and the negligent manner in which such repairs were undertaken. The trial court sustained exceptions to and dismissed appellant's cross-action for damages to his stock of goods, wares, and merchandise.

The case was tried to a jury, and evidence is found in the record sufficient to support the finding that appellee repaired such damages as resulted to the lease premises by fire; appellee restored the premises to as good condition as it was in before the fire; that appellant did not make such repairs necessary for the occupation of the west building, and did not keep the lease premises, plumbing work, closets, pipes, and fixtures in good repair throughout the term of the lease. Appellee suffered damages in the sum of $256.45, for the failure of appellant to make repairs necessary for the occupation of the west building, and $1,232.47, for his failure to keep the premises, plumbing work, closets, pipes, and fixtures in good repair throughout the term of the lease. That appellant did not cause injury or damage to any portion of the lease premises subsequent to June, 1927.

On such findings, the court rendered judgment in favor of appellee against appellant for the amount of the unpaid rent under the contract from June 1, 1927 to December 31, 1929, and 6 per cent. interest on each monthly installment since due, and for $1,488.92, the amount found by the jury as damages for failure to repair the west building and keep the lease premises in repair.

It is a recognized rule of law that, in actions for rent, a tenant may plead, by way of reconvention for damages sustained on account of the failure of a landlord to perform a covenant to repair, or the tenant may plead for a diminution of rents for such failure, but to permit a recovery for damages, and also recovery for a diminution of rents for the breach of such covenant, would be allowing double recovery. Oscar v. Sackville (Tex. Civ. App.) 253 S. W. 651, and authorities therein cited.

In the instant case, there is no covenant that appellee was to repair the demised premises, except in case of fire, and, in the absence of such a covenant, there is no implied warranty on the part of appellee that either of the lease buildings is in a tenantable condition, or would be kept in such condition. If appellant suffered injury or damages to his goods, wares, or merchandise, for which appellee could be held legally liable, it could only be recovered under the terms of the contract —for a failure to perform the covenant to repair the fire damage to the lease premises.

The buildings were repaired and restored to their former condition before the occurrence of any alleged damage to appellant's goods. The evidence is sufficient to sustain the jury's findings on that issue, and we are not authorized to disturb its findings. Perez v. Rabaud, 76 Tex. 191, 13 S. W. 177, 7 L. R. A. 620. There are three covenants by the lessee in the contract, viz.: (1) A covenant to make any repairs necessary for the occupation of the west building; (2) a covenant to...