Rose v. Love , 368 S.W.2d 889 ( 1963 )

ARCHER, Chief Justice.

This is an appeal from a judgment based on a jury verdict against appellant, in an action by appellees to recover rent for the months of March, April, May, June, July, August, and a part of February, 1961, aggregating $1250.00, and for $200.00 as liquidated damages.

The lease agreement was made between Victoria Real Estate Co., a corporation, and R. J. Rose covering a lot or tract of land in Victoria, Texas, for a period of five years at a monthly rental of $200.00.

Among the provisions of the lease is No. 5, reading as follows:

“This lease is not subject to assignment or transfer, or to the subleasing of all or any part thereof by Lessee without the written consent of Lessor. However, it is expressly provided that should Lessee obtain from Lessor consent in writing for the assignment hereof in its entirety, then Lessee shall thereby be relieved of all duties, obligations and payments hereunder provided for.”

The property covered by the lease was conveyed to W. O. Love and C. E. Erwin, the appellees and the lease was also assigned to appellees on January 7, 1961.

Appellant contends that he assigned the lease to Harry J. Coryell on December 13 (12), 1960, and the said H. J. Coryell paid $1000.00 in cash and obligated himself to pay $500.00 on March 1, 1961, and the further sum of $1500.00 in monthly installments of $45.64 each commencing April 1, 1961, and that the Victoria Real Estate Co. agreed to such assignment by a letter dated December 13, 1960, as follows:

“December 13, 1960

“Mr. R. J. Rose

“Victoria, Texas

“Dear Mr. Rose:

“Reference is here made to that certain lease agreement between you and the undersigned firm, dated December 13, 1960.

“You have advised us that you may conclude to dispose of your Hill Country Barbecue business, early in 1961, in which event you will wish to transfer the lease covering premises described in paragraph I, to Harry J. Coryell, who is, at this time, connected with the operation of said business.

“Pursuant to the provisions of paragraph V of that certain lease agreement between you and the undersigned, dated December 13, 1960, this is to advise that the assignment of your lease agreement to Harry J. Coryell, is agreeable with this company, if accomplished on or before June 30th, 1961.

“Yours very truly,

“VICTORIA REAL ESTATE CO.

“/s/ By H. A. Jamison “President”

At the bottom of appellant’s copy of the lease agreement there is a statement as follows:

“Victoria, Texas

“May 1, 1961

“I hereby assign and set over the above lease agreement to Harry J. Coryell without recourse on me.

“/s/ R. J. Rose

“Accepted:

“Harry J. Coryell”

We have carefully considered the record in this case and have concluded that there was no fact issue to submit to the jury.

Mr. Jamison consented to an assignment of the lease agreement to Harry J. Coryell if accomplished on or before June 30th, 1961, and there is no denial of the assignment of the lease agreement to Coryell by Rose on May 1st, 1961.

The judgment of the Trial Court will be reformed so as to allow a recovery against R. J. Rose for rents accruing prior to May 1, 1961, which would be for the months of February, March and April less $150.00 paid, or a sum of $450.00 with 6% interest from August 7th, 1962.

In view of our decision it is unnecessary to discuss other phases of the case.

Costs are taxed against appellees.

The judgment is reformed as stated and as reformed, affirmed.

Reformed and as reformed, affirmed.