Whitworth Estate v. Mangels of Tex., Inc.

• Decision Date: 13 December 1962
• Docket Number: No. 4072,4072
• Citation: 363 S.W.2d 851
• Parties: J. L. WHITWORTH ESTATE et al., Appellants, v. MANGELS OF TEXAS, INC., Appellee.
• Court: Texas Court of Appeals

Page 851

363 S.W.2d 851

J. L. WHITWORTH ESTATE et al., Appellants, v. MANGELS OF TEXAS, INC., Appellee.

No. 4072.

Court of Civil Appeals of Texas, Waco.

Dec. 13, 1962.

Rehearing Denied Jan. 10, 1963.

Tom H. Kee, Waco, for appellants.

Pat Beard, Waco, for appellee.

TIREY, Justice.

The action is one by a landlord against tenant, brought after end of term of lease, for cost of repair to the leased premises and breach of tenant's express covenant to repair and to yield up the premises to the landlord in as good condition as same was when entered under the provisions of the lease. (The cause was here on a question of venue. See Tex.Civ.App., 347 S.W.2d 844). The cause was heard by the Court without a jury. The Court entered a take nothing judgment against plaintiffs and texed the costs accordingly. Plaintiffs perfected their appeal to this Court.

A statement is necessary. The judgment is assailed on what plaintiffs designate as 13 points. (1 and 2) are to the effect that the Court erred in failing to render judgment for plaintiffs under the terms and conditions of the lease for the cost of repairs shown by the undisputed evidence to have been required to repair the damage done to the leased premises before they were yielded up to the landlord at the expiration of the lease, and because the evidence is undisputed that the defendant did not yield the premises to lessor and made no attempt to do so according to the terms of the lease; (3) Because the Court erred in its construction of the lease and in the application of the law to the undisputed facts and in failing to apply the legal measure of damages under this undisputed factual situation. We quote the Findings of Fact and Conclusions of Law:

'FINDINGS OF FACT

'I find that the plaintiffs have not proved the condition of the premises when entered upon by defendant.

'I find that the damages complained of by plaintiff did not occur prior to the expiration of the lease in question.

'I find that the defendant did not hold over beyond the expiration of the lease.

'I find that subsequent to the expiration of the lease the premises were damaged.

'I find that plaintiffs did not prove that the damages complained of occurred prior to the delivery of the key to the premises to plaintiffs' agent.

'I find that the defendant did not cause any of the damages complained of by plaintiffs.

'I find that plaintiffs failed to prove who caused the damages complained of.

'I find that plaintiffs failed to prove any proper measure of damages.'

CONCLUSIONS OF LAW

'I hold:

'(1) That plaintiffs must prove the condition of the premises when entered upon by defendants;

'(2) That any damages complained of must have occurred prior to the expiration of the lease or any holding over under the terms of the lease if plaintiffs cannot prove that defendant caused the damages complained of.

'(3) That the plaintiffs must prove either:

'(a) The reasonable market value of the premises before and after the damages complained of, at the time of the expiration of the lease, or any holding over, or

'(b) The cost of repairs for the damages complained of at the time of the damages complained of, less depreciation caused by ordinary wear and tear;

'(4) That the damage to the building for the removal of fixtures which defendant is authorized to remove is not measured by the cost of replacing new fixtures.'

Plaintiffs went to trial on their first original petition and their trial amendment. Defendant went to trial on a general denial. Plaintiffs and defendant entered into a long term lease dated April 1, 1945, that expired on March 31, 1960. Plaintiffs pleaded the pertinent provisions of the lease and attached a copy of the lease to the petition as Exhibit 'A', and asserted a claim for structural and other items of damages to the premises by reason of tenant's express covenants whereby lessee obligated itself to pay all damages to the premises after removing its personal property and to yield up the leased premises in as good condition as when entered by lessee, with exceptions of reasonable wear and tear. We quote the partinent parts of the lease provisions:

'The lessor covenants that the leased premises and any alterations and improvements thereon will, at the commencement of the term hereof and during the entire term hereof, conform to the laws, ordinances, rules and regulations of all duly constituted authorities and will be an condition suitable for the conducting of a retail store.

' * * * and the lessee accepts such premises as suitable for the purposes for which same are leased and accepts the building and each and every appurtenance thereof, and agrees to hold the lessor harmless from all claims for any such damage.

'The lessor covenants and agrees that title to all fixtures, signs electric or otherwise, shelving and equipment (whether attached to the land or building or otherwise) placed on the premises by the lessee whether prior to the term of this lease or during its term or any renewal thereof, or during any continued occupancy of said premises, shall remain the property of the lessee and may be removed at any time that the lessee may desire, provided that said lessee shall not be in default in the payment of rent and provided lessee shall pay all damage to said building resulting from said removal.

'The lessee covenants and agrees that at the expiration of the term of this lease, it will peaceably yield up the leased premises to the lessor in as good condition as when same were entered upon by lessee, damage by fire and other elements and ordinary wear and tear excepted.

'This lease shall not be assigned except with the written consent of lessor, and such consent shall not be unreasonably withheld.'

The entire lease was tendered in evidence.

Executor Whitworth testified to the effect that the building was in good usable condition at the beginning of the lease; that the tenant did not deliver the premises to him after its removal, and that it was about eight or ten days after the end of the lease before he could locate and obtain the keys to the building; that when he entered the building the premises were damaged, detailing the damages, and pictures were introduced showing the condition of the building; that repairs were necessary and that the reasonable cost to repair the electrical damages would be about $1100.00 or $1200.00; that the carpenter work necessary would reasonably cost $300.00. An expert electrician, Guy Hines, testified to the effect that electrical repairs would have to be made to the building, and that the reasonable cost was $1187.12. The witness Fisher, a carpenter, testified as to the damaged part of the building requiring carpenter work to be $275.00, and that such amount was a reasonable and a necessary charge. Mr. Katz, district manager for the tenant, testified to the effect that he was sent to close out the store; that he closed it on Saturday night before the end of the lease on March 31, 1960; that he began to get the merchandise ready for shipment and sold other equipment and air-conditioning to Mr. Lebowitz; that as soon as the merchandise was shipped out he left, and left the keys to the building with the local manager, Mrs. Sharp; that he gave no instructions and made no attempt to contact the landlord and yield the building to him; that his position was that after he removed the tenant's merchandise and sold the other property to Lebowitz, that he had no further responsibility for the building or to the landlord. Mrs. Sharp testified to the effect that she was in and about the store prior to March 31, 1960, and also after that date, and that after Mr. Katz left they were still working on removing the air-conditioning; that she did not deliver the keys to the building to the landlord and was not instructed to do so; that when she came by the store after the lease was ended there were some men working in the store removing the lights and air-conditioning, and that she was not instructed to do otherwise and that she left the keys in the store when she left. A Mr. Mooney, witness for tenant, testified that he bought the air-conditioning equipment; that he took out only what he was supposed to take, and knew nothing about other items; that he bought the air-conditioning from the liquidator, and that Mr. Katz and Mrs. Sharp were there at the time; that he required an affidavit of ownership to the property he bought; that he obtained the keys from the man he bought the equipment from, and that about ten days after he removed the equipment Mr. Whitworth called and asked to get the keys to the building, and that he delivered the keys to Mr. Ancel Greene. Defendant's witness, McGlasson, testified to the effect that he looked in the building on the morning of the trial and stated that he estimated the reasonable cost of repairing the holes in the show windows, replacing missing boards and closing the opening on each side of the show window, to be $150.00; that he did not go into the building and figure all that Mr. Fisher figured, and that he made no estimate for the electrical part of the work.

It is our view that the evidence tendered made out as prima facie case and supports plaintiffs' allegations for relief.

Points 1, 2 and 3 challenge the construction given by the Court to the contract under the pleadings and the testimony tendered. We sustain each of these points. Plaintiffs have made no attempt to recover any rent or use of the holdover provisions. It is conceded under the terms of the contract that the tenant had a reasonable time to move out, and that the eight to ten days intervening between the date of termination and the date the landlord obtained the keys was not an unreasonable time. In Eckstine v. Webb Walker Jewelry Company, Tex.Civ.App., 178 S.W.2d 532, points 5-6, (ref. w. m.), we find this statement:

'The construction of the lease contract is to be governed by the general rules of construction of written instruments; it is...