London Terrace, Inc. v. McAlister , 1944 Tex. App. LEXIS 661 ( 1944 )

I am in accord with the majority only in reversing the judgment of the trial court. The facts being fully developed, as disclosed by the majority opinion, and all substantive issues adjudicated, a remand of the cause for another trial based on breach of the written contract in suit, is, in my opinion, an idle gesture.

On another trial, the court would be justified in abating the defensive theory advanced by the majority. The rental contract is clear and unambiguous; executed by the contracting parties in New York City, it involved the renting of an upper unit in an 18-story housing unit apartment, in which 11,000 people resided in 1,600 units. Appellee and wife first made a written application to lease a unit, selected the one inspected and became satisfied with the premises and equipment before executing the contract in suit. This application and inspection led to the voluntary execution of the contract and appellee and wife moved into the apartment on October 1, 1940, agreeing to pay an annual rental of $2,640 in equal monthly installments. They occupied the apartment through the winter of 1940-41, and to Dec. 16, 1941, of the winter of 1941-42, and paid the installments of rent as they became due to Jan. 1, 1942.

On December 16, 1941, defendant vacated the apartment and moved to Pittsburgh, Pa. On cross examination, defendant testified as follows:

"Q. You moved to Pittsburgh. Why didn't you get another apartment in New York? A. Because I took her (wife) to Pittsburgh in the William Penn Hotel that I knew gave heat, and they gave you all the heat you could get.

"Q. There was plenty of hotels in New York? A. Yes, but I didn't care to move into another hotel in New York. I lived in a hotel in New York.

"Q. But you did go to Pittsburgh instead of New York? A. That is right."

The defendant's testimony further shows that he moved to Pittsburgh to carry on his advertising business from that point, and thereafter moved to Texas. It is clear, I think, that defendant vacated the leased premises without cause or reason other than convenience to himself; thus is liable for the unpaid portion of the rents.

The written application that defendant signed to secure the leased premises expressly provides: "The owner will not be bound by agreements or promises made by representatives unless mentioned in this agreement"; and the contract provides: "Landlord or Landlord's agents have made no representations or promises with respect to said building or demised premises except as herein expressly set forth. The taking possession of the demised premises by Tenant shall be conclusive evidence, as against Tenant, that said premises and the building of which the same form a part were in good and satisfactory condition at the time such possession was so taken." It will thus be seen that the contracting parties expressly agreed that the written contract embodied all the terms and conditions affecting liability of the respective parties, and that the existing facilities were "in good and satisfactory condition"; therefore, I quote the material covenants in the contract involving the defensive theory advanced by the majority for the guidance of the trial court on remand of this cause:

"13. * * * Landlord covenants to furnish, insofar as the existingfacilities provide, the following services: (a) Elevator service; (b) Hot and cold water in reasonable quantities at all times; (c) Heat at reasonable hours during the cold seasons of the year. Interruption or curtailment of any such services shall not constitute a constructive or partial eviction nor, unless caused by the gross negligence of Landlord, entitle Tenant to any compensation or abatement of rent. * * * Landlord may discontinue such service upon thirty (30) days' notice to Tenant without being liable therefor or in any way affecting the liability of Tenant hereunder. * * * It is understood, however, that due allowance shall be made by Tenant for reasonable delay caused by strikes or anyother cause beyond Landlord's control. * * * It is expressly understood and agreed that any covenants on Landlord's part to furnish any service pursuant to any of the terms or provisions of this lease, or to perform any act or thing for the benefit of Tenant, shall not be deemed breached if Landlord is unable to perform the same by virtue of a strike or labor trouble or any other cause whatsoever beyond Landlord's control." (Italicized for emphasis.)

It will be seen that defendant hinges his defense to plaintiff's cause of action upon breach first of a verbal contract, alleged to have been made previous to the written contract, in which plaintiff agreed to furnish sufficient heat, always available day and night in the apartment, as required and demanded by the wife of defendant; and second (paragraphs 6 and 7), defended on breach of the written contract in failing to furnish adequate heating facilities. It will be further seen that the defendant totally failed to prove any failure or breach on the part of plaintiff to support either defense; in consequence, the trial court refused to submit the issue to the jury as to breach of the written contract, and expressly adjudicated and decreed in judgment that the defendant, Raymond W. McAlister, take nothing against plaintiff, London Terrace, Inc., on the alleged breach of the above written agreement. Thus it is folly, in my opinion, to remand the cause to the trial court on an issue or theory raised by the majority, which has been litigated, and judgment rendered denying defendant the relief urged in defense of plaintiff's cause of action.

Defendant alleges "by way of cross action and further answer, * * * that as a result of the failure of plaintiff to furnish adequate heatingfacilities for the leased premises, plaintiff breached its lease agreement, and that defendant is not bound, as a matter of law, by the term obligatory therein contained, as applied to him." On such pleadings and the evidence adduced, the trial court entered the following judgment: "It is further ordered, adjudged and decreed by the Court that the defendant, Raymond W. McAlister, take nothing against the plaintiff, London Terrace, Inc., upon his cross-action filed in said cause." Thus it will be seen that the issue or theory of defense as suggested by the majority in remanding the cause was expressly pleaded by defendant, judgment rendered on the issue by the trial court, and no appeal or assignment of error on the action of the trial court; hence the judgment became final, res adjudicata to further trial on that issue.

I am in accord with the majority holding, in effect that the prior negotiations, if any, between the contracting parties, previous to the execution of the written contract, must be considered as either waived or merged in the written agreement; and that the record on this appeal does not show fraud to modify or alter the written contract. Such holding finds support in authorities of this state: Janes v. Ferd Heim Brewing Co., Tex. Civ. App. 44 S.W. 896, writ refused; Bolt v. State Savings Bank, Tex. Civ. App. 179 S.W. 1119; Avery Co. v. Harrison Co., Tex.Com.App., 267 S.W. 254; Colt Co. v. Kelly, Tex. Civ. App. 270 S.W. 942; Browning-Ferris Mach. Co. v. Thomson, Tex. Civ. App. 58 S.W.2d 183; Distributors Inv. Co. v. Patton, 130 Tex. 449, 110 S.W.2d 47; Super-Cold Southwest Co. v. Elkins, 140 Tex. 48, 166 S.W.2d 97. But to remand the cause to the court below for new trial on the independent ground of breach of the written contract which was litigated to final conclusion and from which no appeal was taken, or assignment of error presented, is, in my opinion, an arbitrary action by this court.

Furthermore, it will be seen that the written contract expressly limits the heating service of which defendant complains, to "insofar as the existing facilities provide," and that "if Landlord is unable to perform the same by virtue of * * * any cause whatsoever beyond Landlord's control," such failure shall not be deemed a breach of the contract by the landlord. It will be further seen that the contract provides (Sec. 18): "The taking possession of the demised premises by Tenant shall be conclusive evidence, as against Tenant, that said premises and the building of which the same form a part were in good and satisfactory condition at the time such possession was so taken." The record reveals that defendant offered no testimony touching the breach of any covenant in the written contract by plaintiff, hence the trial court was without authority to submit the issue, or theory of defense; and no complaint having been urged by defendant in this appeal in reference thereto, this Court is without power to raise the question, remand the cause and direct the action of the trial court as to the sufficiency of the evidence to sustain such defensive issue. Rule 279, T.R.C.P., declares: "Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived; * * *."

Manifestly, defendant has had his day in court on the theory suggested by the majority, and the judgment of the trial court foreclosed the issue, hence, to remand the cause for a new trial will incur an excessively costly and unprofitable undertaking by appellant. The judgment of the court below should be reversed and rendered for appellant, and so believing, I respectfully dissent to a remand of the cause.