Wukasch v. Hoover

• Decision Date: 26 March 1952
• Docket Number: No. 10027,10027
• Citation: 247 S.W.2d 593
• Parties: WUKASCH et al. v. HOOVER.
• Court: Texas Court of Appeals

Page 593

247 S.W.2d 593

WUKASCH et al. v. HOOVER.

No. 10027.

Court of Civil Appeals of Texas, Austin.

March 26, 1952.

Louis Scott Wilkerson, Austin, for appellants.

Critz, Kuykendall, Bauknight & Stevenson by F. L. Kuykendall, all of Austin for appellee.

GRAY, Justice.

Appellants sued appellee on a written lease contract and alleged a present right of action against appellee by reason of his notice of intention to vacate the premises and his refusal to pay rent under the contract. Their prayer was for a judgment denying appellee the right to compel them to accept and treat as a surrender appellee's vacation of the premises, for damages for breach of the alleged lease contract, for an attorney's fee and for general relief.

After depositions had been taken, and after admissions had been made in response to a demand therefor, the trial court heard the motions of appellants and appellee for summary judgment. Appellants' motion was denied, appellee's sustained and a judgment that appellants take nothing by their suit was rendered.

By the alleged lease contract dated July 1, 1948, and executed in duplicate original, appellants, C. G. and Emma Wukasch, leased to appellee, for a term of five years beginning October 1, 1948, and ending September 30, 1953, 'all those improvements and that parcel of land located at 2270 Guadalupe Street, in the City of Austin, County of Travis, and being the same property now occupied by lessee herein as a tenant of lessors.'

The recited consideration to be paid by lessee to lessors was the total sum of $23,040, payable monthly in advance at the rate of $360 per month for the first two years and $400 per month for the remainder of the contract period. $400 was deposited with lessors to cover the last month's rental due unless the contract was sooner terminated in accordance with its provisions. The contract further provided for the payment of a reasonable attorney's fee of not less than ten per cent. of the amount of rent due should it become necessary for appellants to secure the services of an attorney.

We do not deem the further covenants of the contract material to our decision here.

The lease contract was signed 'C. G. Wukasch Emma Wukasch by Walter Wukasch, Agent in Fact,' and was signed by appellee. The premises were occupied and used by appellee who paid the rent as it become due until sometime prior to June 1, 1951, when he notified appellants he would vacate the premises and would not pay any rent after that date. It does not appear what reason was given by appellee for vacating the premises at the time he gave notice of his intention to do so. In his answer to appellants' petition he alleged that the roof leaked, however this plea seems to have been abandoned.

It was developed that Walter Wukasch was the son of C. G. and Emma Wukasch and was not authorized in writing to sign their names to the lease contract, and that C. G. and Emma Wukasch were not present when the contract was signed by Walter.

The first ground of appellee's motion for summary judgment is to the effect that the lease contract is void and unenforcible because Walter Wukasch was not authorized in writing to sign as agent for C. G. and Emma Wukasch. Error is assigned to the action of the trial court in sustaining this ground of the motion.

Article 1288, Vernon's Ann.Civ.Stat., provides:

'No estate of inheritance or freehold, or for a term of more than one year, in lands and tenements, shall be conveyed from one to another, unless the conveyance be declared by an instrument in writing, subscribed and delivered by the party disposing of the same, or by his agent thereunto authorized by writing.'

This statute does not render void and unenforcible every parol conveyance of land, or the parol lease thereof for a term of more than one year.

At the beginning of the term specified in the lease contract and at a time when appellants were not bound by it because they had not signed it, or authorized in writing their signatures, we think the contract may have been subject to the objection that it was unilateral and lacking in mutuality and governed by that rule as announced in Clegg v. Brannan, 111 Tex. 376, 234 S.W. 1076. Art 3995, Vernon's Ann.Civ.Stat. However, the facts before us show that the lease contract was signed by appellee and was accepted by appellants. Although the contract and the facts suggest that appellee was in possession at the time the contract was made, he accepted further possession and retained his possesssion of the premises by reason of it. Thereafter he paid the stipulated rentals from October 1, 1948 to May 1, 1951. Appellants accepted these rentals and appellee's possession of the premises. Thus for more than two years there was a full compliance with the terms of the contract by appellee and by appellants. These acts in themselves are sufficient to identify the lease contract and could not have been performed with any purpose except to perform the contract, and, further they are sufficient to impress upon the contract the character of a written instrument and to require that it be treated as such. Clegg v. Brannan, supra; Johnson v. Tunstall, Tex.Com.App., 25 S.W.2d 828; Houston Oil Co. v. Singleton, Tex.Civ.App., 44 S.W.2d 479, error ref.; Ferguson v. Parker, Tex.Civ.App., 176 S.W.2d 768, error ref., w. o. m.; Copeland v. Hill, Tex.Civ.App., 126 S.W.2d 567; Vinson v. Horton, Tex.Civ.App., 207 S.W.2d 432; 10 Tex.Jur. p. 264, Sec. 252.

In Tinsley v. Metzler, Tex.Civ.App., 44 S.W.2d 820, 822, error dism., the Court said:

'* * * it seems to be the rule of decision in this state that, where the tenant has gone into possession and paid rent, this is such part performance as takes the transaction out of opperation of the statute and renders it unavailable as a defense in an action by the landlord to recover rents accruing after the tenant vacates the premises. Randall v. Thompson, 1 White & W. Civ.Cas.Ct.App. § 1100; Johnson v. Neeley, Tex.Civ.App., 36 S.W.2d 799; Dockery v. Thorne, Tex.Civ.App., 135 S.W. 593; Sorrells v. Goldberg, 34 Tex.Civ.App. 265, 78 S.W. 711; Adams v. Van Mourick, Tex.Civ.App., 206 S.W. 721.'

Also, Chavez v. Goodman, Tex.Civ.App., 152 S.W.2d 826.

We conclude appellants' first point must be sustained.

Appellants' second point is to the effect that the trial court erred in holding the description of the property contained in the contract is insufficient. (See description, supra.)

This point is sustained. In Miller v. Hodges, Tex.Com.App., 260 S.W. 168, 170, the rule is quoted as follows:

'The rule is that where the writing within itself, or by reference to other writings, contains sufficient data so that by the aid of parol evidence no question as to the intention of the parties can arise, it is sufficient. The most specific and precise description of the property requires some parol proof to complete the identification. A more general description requires more. When all the circumstances of possession, ownership, situation of the parties, and their relations to each other and the property, as they were when the negotiations took place and the writing made, are disclosed, if the meaning and application of the writing, read in the light of those circumstances, are certain and plain, the parties will be bound by it as a sufficient written contract or memorandum of their agreement.'

Appellants' third point is to the effect that the trial court erred in sustaining appellee's motion on the ground that the contract did not show on its face that appe...