Willis v. Thomas

• Decision Date: 23 May 1928
• Docket Number: (No. 8000.)
• Parties: WILLIS v. THOMAS.
• Court: Texas Court of Appeals

9 S.W.2d 423

WILLIS v. THOMAS.

(No. 8000.)

Court of Civil Appeals of Texas. San Antonio.

May 23, 1928.

Rehearing Denied October 3, 1928.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Action by R. M. Willis against J. R. Thomas. From a directed verdict in favor of defendant, plaintiff appeals. Reversed and rendered.

Boone & Savage and Felix A. Raymer, all of Corpus Christi, for appellant.

E. B. Ward and S. Eldon Dyer, both of Corpus Christi, for appellee.

SMITH, J.

R. M. Willis and T. V. Cobb operated the Star Drug Store in Corpus Christi in a building rented by them from Guggenheim & Cohn, the owners. Dr. J. R. Thomas was a practicing physician in Corpus Christi, but being impressed by a current real estate boom undertook to engage in the real estate brokerage business through a partnership he formed with one J. J. Prine. This partnership rented desk space in the Star Drug Store, from Willis and Cobb, under a lease which "shall begin not later than May 1, 1926, and shall terminate not later than December 31, 1927," a period of 20 months. The lessees agreed to pay rental in the lump sum of $1,500, payable monthly in advance at the rate of $75 per month. The lease contract contained these stipulations, among others usual to such agreements:

"Said party of the second part (lessees) hereby agrees, binds and obligates themselves jointly and individually to pay unto party of the first part at their place of business, Corpus Christi, Tex., as rental for said space for said entire twenty (20) months the sum of fifteen hundred ($1,500.00) dollars payable as follows: Twenty (20) equal installments of seventy-five ($75.00) dollars each to be paid on the first day of each month for twenty (20) months, and if default be made in the payment of monthly installments as they accrue for a period of fifteen (15) days all of said installments not then due shall at the option of the parties of the first part and without notice to the parties of the second part become due and payable and the parties of the first part shall thereupon have the right to reenter into and upon said lease space and eject therefrom parties of the second part and take possession of said space without prejudice, however, to the right of parties of the first part to collect rental as aforesaid and as herein agreed, on said premises for the unexpired portion of said entire term of twenty (20) months. * * *

"The parties of the first part (lessor) reserve the right to cancel this lease at any time they sell the Star Drug Store or, and the lease they have with Guggenheim & Cohn, and parties of the second part agree to the cancellation of this, their lease, in this case and agrees to vacate said space upon the payment to them of one hundred and fifty ($150.00) dollars by parties of the first part within fifteen (15) days after being notified of cancellation."

Dr. Thomas's partner, Prine, upon whom it seems Dr. Thomas depended to actively operate the new business, appears to have given up the project and left town at the end of the first two weeks, and the venture was suspended thenceforward. Dr. Thomas paid the first month's rent of $75, but made no further effort to operate the business or hold the rented space. On September 10, 1927, 3 months and 21 days before the expiration of the 20-month term fixed in the sublease to Dr. Thomas and his associate, Willis & Cobb surrendered their lease to the owners of the building. This was one of the contingencies under which it was stipulated that the sublease should terminate.

After the lapse of a year, which was eight months before the end of the lease period, Willis, as the successor to Willis & Cobb, the landlord, brought this action against Dr. Thomas alone, seeking to recover of him the sum of $1,500, being the full amount of the agreed rental stipulated in the 20-month sublease. The trial court directed a verdict in favor of Thomas, denying any recovery to Willis, who has appealed.

The case seems to have gone off, primarily, upon the theory that the lease contract in question created a strict tenancy at will, terminable by the landlord at any time he might so elect, and therefore likewise terminable at the will of the tenant.

It is contended, by appellee, that although the term of the lease is definitely fixed in the contract to be for a period of 20 months, the certainty of the term so fixed is destroyed by the provision that the lease may be canceled by the landlord in the contingency that he sell his drug business and/or the lease under which he has sublet a part of his leased premises to appellee. It is contended that this proviso put it in the power of the landlord to terminate the lease at any time he pleased, by the device...