Willeke v. Bailey, A-523.

• Decision Date: 11 July 1945
• Docket Number: No. A-523.,A-523.
• Parties: WILLEKE v. BAILEY et al.
• Court: Texas Supreme Court

189 S.W.2d 477

WILLEKE v. BAILEY et al.

No. A-523.

Supreme Court of Texas.

July 11, 1945.

Rehearing Denied October 17, 1945.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by Doc Willeke against M. E. Bailey and another for possession of land and a building thereon. To review a judgment of the Court of Civil Appeals, 185 S.W.2d 456, reversing a judgment for plaintiff and rendering judgment for defendants, plaintiff brings error.

Judgment of Court of Civil Appeals reformed and affirmed in accordance with opinion.

Kerr & Gayer, of San Angelo, and Dan Moody and J. B. Robertson, both of Austin, for petitioner.

James P. Farrell, of San Angelo, for respondents.

BREWSTER, Commissioner.

Doc Willeke, petitioner, sued M. E. Bailey and R. H. Fenton, respondents, for the possession of approximately one-half acre of land and for damages for withholding it from him after the expiration of a lease contract. In response to a jury verdict the trial court rendered judgment for Willeke, which was reversed by the Court of Civil Appeals and rendered for respondents. 185 S.W.2d 456.

Willeke alleged that he had rented the land to Bailey "on or about the ____ day of January, A. D. 1942," as a place to operate a liquor package store; that he let to Bailey for a term of two years; that after the term expired, respondents unlawfully failed and refused to vacate the premises, to his damage in the sum of $150 per month from January 1, 1944.

Respondents answered that after some negotiations by respondent Fenton, who was a real estate agent, Willeke and Bailey executed on January 24, 1942, a written agreement, relevant parts of which are as follows:

                               "San Angelo, Texas
                               "January 24, 1942
                

"This agreement entered into this the twenty-fourth day of January between Doc Willeke and M. E. Bailey, that the party of the first part leases to the party of the second part, 1/2 acre more or less on the right hand side of road on Highway No. 67, being 4 3/10 miles from the present incorporate limits of the City of San Angelo, Texas.

"The rental for this lease is Fifty Dollars and no cents monthly to be paid in advance monthly for first twelve months and Sixty-five Dollars thereafter, so long as conditions are favorable.

"This lease between both undersigned is for a period of eighteen months, with option of extension from year up to five years from date.

"It is further agreed that if the precinct should be declared out of limits for sale by a package store that this agreement be declared null and void.

                                "Doc Willeke
                                   "Party of First Part
                                "M. E. Bailey
                                   "Party of Second Part
                "R. H. Fenton
                  "Witness."
                

Respondents answered further that although the original 18 months period had expired, they had exercised their option to continue to use the premises as provided in the lease, by continuing to pay the monthly rents after the primary term.

After denying under oath the execution of the contract pleaded by respondents, Willeke alleged that he had executed to Bailey a lease contract "about the last of January 1942" to expire "about the 1st of February, 1944"; that the rent for the first year was to be $50 per month and for the second $65 per month; that it contained no provision for an "extension or option"; and that the contract "is in the possession of the defendants."

Respondents in turn denied under oath the execution of the contract alleged by Willeke.

In answer to four special issues the jury found: (1) That Willeke signed and delivered to Bailey a lease contract for two years, beginning February 1, 1942, at $50 per month for the first year and $65 per month for the second; (2) that the reasonable monthly rental value of the land from and after February 1, 1944, was $100; (3) that the instrument of writing alleged by respondents dated January 24, 1942, and quoted above was signed by Willeke; but (4) that that instrument did not authorize Bailey to extend the term "to five years from January 24, 1942, at $65.00 per month."

No issue was given or requested as to which of the two contracts referred to in special issues 1 and 3 was executed first.

Willeke attacks the holding of the court of civil appeals that the contract claimed by respondents was executed after that claimed by Willeke.

With a jury finding that both contracts were made, it is quite evident that the terms of the one agreement are so inconsistent with those of the other that the two cannot subsist together. In that situation the rule is that the one made first is conclusively presumed to have been superseded by the other. 17 C.J.S., Contracts, § 395, p. 886; 32 Am.Jur., Landlord and Tenant, Sec. 147, p. 147.

In view of the controlling effect which must therefore be given to the fact as to which of the alleged contracts was executed first, we have studied the statement of facts to determine the correctness of the holding of the court of civil appeals.

Willeke testified that he executed only one contract with respondents; that it was typed on the back of an envelope; that when he signed it only Bailey and one Roy Scott were present; that it was a lease for two years and no more; that he signed this instrument in January; that he was positive it was more than a day before he went to the hospital, and that it was "I imagine a week, maybe longer" before he entered the hospital; that he went to the hospital on Sunday, which "I imagine" was on January 25, and remained there six or seven days; and that the lease was not signed on Saturday because Scott was "out of town every Saturday."

A calendar offered in evidence showed that January 24, 1942, was Saturday.

Scott testified that about the middle of the month of January, "anywhere from the 12th. to the 25th.," but before Willeke went to the hospital, Scott and Bailey went to Willeke's home to talk with Willeke about a lease agreement; that while witness did not read the agreement, he knew it was typed on the back of an envelope; that he saw Willeke sign it; and that that was the only time he had gone to the Willeke home with Bailey.

Mrs. Willeke testified that two or three days before Willeke entered the hospital Bailey and Scott came to their home and talked to him about some business relating to a package store.

The only other person involved in the transaction was Bailey, and it is in his testimony that Willeke now asserts is to be found a conflict with the testimony of the Willekes and Scott. Bailey unequivocally denied that the contract testified to by the Willekes and Scott was ever executed. He testified to the execution by Willeke of the contract of date January 24, 1942, above quoted, with Fenton as a witness, and that it was the only lease contract executed by them. He testified, further, that after Willeke returned from the hospital he did go with Scott to see Willeke but that no contract was executed on that occasion, the purpose of the visit being to talk to Willeke about...