Wicks v. Comves , 1914 Tex. App. LEXIS 1320 ( 1914 )

Appellee Louis Comves, brought this suit against appellants, Moye Wicks, Jr., Z. Morris, G. L. Black, and A. J. Zydias for specific performance of a lease contract between James Condos Co., and Louis Comves, and in the alternative for damages, for failure upon their part, appellants, to render specific performance. A verdict was instructed by the trial court for appellees, and a judgment was rendered for $905, from which their appeal is perfected.

The assignments of error and the several propositions sufficiently reveal the points of law involved in this appeal, so that it is not deemed necessary or expedient to quote the pleadings of the parties.

The first to seventh assignments charge error upon the peremptory instruction of the trial court, and charge that the trial court erred in the instructed verdict, in refusing a special charge, because: (a) The lease contract was in violation of a city ordinance of the city of Houston against storing or vending fruits, etc., on sidewalks; (b) a portion of the lease contract being void and unenforceable, for illegality, it destroys the whole of the contract; (c) was the contract ratified because appellants accepted rents? (d) because appellee voluntarily surrendered the premises, and he is therefore not entitled to recover damages; (e) appellee not having been dispossessed of the premises, is not entitled to recover, because not entitled to demand the five feet square unless dispossessed.

In this class of cases the exact contract sought to be enforced must be construed, and if illegal in whole, it cannot be enforced; if in part, and not severable, then the vice permeates the whole, and it cannot be enforced in part, but if severable, and the legal part in no way depends or rests upon the illegal part, the contract is severable and the legal portion will be enforced. Being of the opinion that a correct answer to the quæry, "Is any portion of the contract sued on illegal?" must be resolved in favor of its legality as a whole, it will be unnecessary to discuss the severability of the contract.

The parts of the contract sued on essential to the determination of the questions presented by the assignments are as follows:

"This agreement of lease * * * between Jos. Condos Co. * * * and Louis Comves * * * witnesseth that the lessor does * * * lease and demise unto the lessee * * * the possession and occupancy and use of the following property: That certain fruit stand * * * being upon the outside of the one story building now occupied by Condos Bros., as a candy store * * * said fruit stand extending from the main street entrance of Condos Bros., to the corner of the building on Texas avenue, thence to the back entrance on Texas avenue of Condos Bros. place of business, together with all shelving, * * * etc., which are a part thereof * * * for a monthly rental of $200.00 in advance * * * said lease being from the first day of May, 1911, until April 1, 1914. * * * It is expressly understood and agreed that in the event the city of Houston complains of this aforesaid fruit stand being placed upon the outside of said building and projecting over and covering a portion of the sidewalk in front and on the side of said building, or in the event that any city ordinance which is now in force or which may hereafter be passed by the city of Houston shall make it impossible for said fruit stand to remain upon the outside of said building or to project over or occupy a portion of the sidewalk around said building, and if it shall be a violation of any such city ordinance to have such fruit stand project over or occupy a portion of said sidewalk, then it shall be the right and privilege of the lessee herein to remove said fruit stand, together with all shelving, stands and other fixtures and appurtenances thereto from said sidewalk, and said Condos Bros. shall give him a space inside of said building now occupied by Condos Bros., in which space he shall be permitted to erect said fruit stand, together with all shelving, stands and fixtures thereto belonging and shall be permitted to conduct said fruit stand within said building. In the event it becomes necessary to remove said fruit stand inside of the building now occupied by Condos Bros., the lessee herein shall be given a space in the corner of said building on Main street and Texas avenue, said space to be a square, each side of which is to be five (5) feet in which to erect said stand. In the event said stand is erected in said building, all the privileges and rights of both parties to this lease shall be the same as if said stand had remained upon the outside of said building."

From the whole of this contract, it is apparent (while not expressly stipulated therein) that the understanding between the parties was that the leased premises were to be occupied by the lessee solely as a fruit stand, if at all, but there is no provision in the writing that it shall be so occupied; in other words, it is no part of the contract that it shall be so occupied. There are many provisions in this writing which binds the lessor to furnish in lieu of the structure described the space five feet square inside of the building, the existence of any one of which is sufficient to require the lessor to comply therewith. One of these is that, if it shall be a violation of any city ordinance to have such fruit stand to project over or occupy any portion of said sidewalk, etc., there being such an ordinance at the date of the contract, eo instanti, upon the signing of this contract, or at any time thereafter within the life of his contract, the lessee was entitled to have and occupy the five-foot space within the building, and the mere knowledge that the structure leased was being used by the lessee in a business prohibited by the ordinance of the city could not vitiate the contract as written. McKinney v. Andrews, 41 Tex. 363; Bishop v. Honey, 34 Tex. 245; Labbe v. Corbett, 69 Tex. 503, 6 S.W. 808.

The stipulations in the contract above quoted expressly negative the idea that it should be used in violation of any ordinance, and its clear meaning is that the fruit stand is leased, provided it can be lawfully occupied by the lessee, and if it cannot, then the five-foot space is leased in its stead, by the same writing.

The premises were taken over by appellants from Condos Bros., and the uncontradicted evidence shows that appellants had constructive and actual notice of appellee's lease when they accepted rents. Condos told them of the lease, and it was recorded on the same day that the appellants took their bill of sale. Thereafter, with such notice, appellants accepted rents, by which acts they ratified the contract, so the court did not err in refusing the special charge requested upon ratification.

Appellant in their sixth assignment complains that the appellee voluntarily surrendered the premises, and therefore was not entitled to recover for future profits under his contract of lease. The facts are that appellants sequestrated the premises, appellee replevied, and thereafter in open court, to avoid going to trial on the cross-action of appellants for rent and possession, he agreed to surrender the premises with the express understanding in open court, and the court's order so states, that neither parties' rights should be in any way prejudiced by the surrender of the property to appellants. It cannot be held that under such circumstances the appellee also abandoned his right to recover damages for the breach of the contract sued on.

For the reasons given, the assignments are overruled and cause affirmed.