Lipscomb v. Butler , 35 S.W.2d 742 ( 1931 )

On Motion for Rehearing.

SMITH, J.

As will be seen from the original opinion, the trial court found that appellant and ap-pellee entered into a contract whereby the latter acquired the right to continue in peaceable possession of premises he had previously rented from appellant, until June 21, 1931. This finding appears to have been based upon the following correspondence passing between the parties:

“Mr. E. Butler,

“3409 N. St. Mary’s St.,

“San Antonio, Texas

“Dear Sir,

“I have done at least $150.00 worth of law work for you, that I probably will never receive any pay for. I have also advanced $32.00 for the bankruptcy proceeding against the American Pecan & Nut Company. I may never get this back. Under the circumstances, I do not think you ought to expect any more for the workshop than seven (7) months rent.

“Yours very truly, E. P. Lipscomb.”

“Mr. E. P. Lipscomb:

“I accept your offer of Seven Months Rent for my building on your lot at 3409 N. St. Mary. This does not include Work Benches or spray Porchies or tables or Loose lumber this credit of Rent is to begin after all other accounts are paid in full by cash or Rent Receipts this is as agreed by us on Nov. 3rd.

“Elvin Butler.”

Appellant emphatically denied receiving appellee’s letter, last above quoted.

It seems perfectly obvious that this correspondence, standing alone, does not constitute a contract, for, even if appellant’s letter to appellee can be construed into a definite offer, which is at least doubtful, appellee’s reply certainly does not constitute an unconditional acceptance of that offer, since by its own terms it is made expressly subject to apparently material and substantial exceptions, or conditions. This correspondence is not .aided by parol testimony, for the parties had reached no prior oral agreement and did not thereafter discuss among themselves the matters in controversy. There was no further correspondence, except that, according to appellant’s testimony, he wrote appellee a few days later, offering the latter $50 to vacate the premises, and in the absence of further negotiations, instituted distress proceedings against appellee, which were enjoined in the present action. The record is quite barren of any evidence that the parties reached any sort of oral agreement, either before or after the correspondence, and the judgment must be reversed on that account, if for no other.

This action is one in equity to restrain appellant from prosecuting a pending distress proceeding to oust appellee from rented premises. There is no allegation or evidence that appellant is insolvent, or that appellee has no adequate remedy at law to protect him against the alleged wrongs he complains of. In short, there is nothing in the record to warrant an injunction restraining appellant from pursuing the legal remedies provided by statute for the settlement of controversies between landlord and tenant, as appellant was doing when enjoined therefrom. If he elects and wrongfully pursues such remedy, and ap-pellee should be thereby injured, the law affords the latter ample means of redress, without the necessity of resort to equity.

Appellants’ motion for rehearing will be granted, the judgment reversed, the injunction dissolved, and the cause remanded for further proceedings not inconsistent with this opinion.