103 S.W. 663 | Tex. App. | 1907
In this suit appellee, Mrs. Josie E. Mattingly, recovered judgment against A. H. Chambers, appellant, for $180 rent due for a house and lot in the city of Sherman for the months of February, March and April, 1905.
The undisputed testimony coming from both sides shows that during the term of the lease, and on the 2d day of February, 1905, the building, which was a storehouse, was very much damaged by fire; that appellant, the tenant, requested appellee, his landlord, to repair the building, and she agreed to do so; that appellant moved his stock of goods out of the building and appellee caused it to be repaired, after which, and about the first of May, 1905, appellant resumed possession of it under his lease. Appellant refused to pay the rent for the months of February, March and April, claiming that he was not liable therefor, because he was not then in possession of the building and appellee had possession of it for the purpose of having it repaired; and, among other defenses, he alleged, in substance, in the third paragraph of his answer that appellee did not make the repairs with reasonable dispatch and consumed more time than was necessary for that purpose, and that if he was liable for the rent for any portion of the three months referred to, it was only for such time as was reasonably necessary for making the repairs.
After hearing all the testimony, the court directed a verdict for the plaintiff, and that action is assigned as error. We sustain the assignment and reverse and remand the case, because there was *131 testimony tending to support the defense set up in the third paragraph of appellant's special answer. There was some testimony tending to show that, by the exercise of reasonable diligence, appellee could have made the repairs sooner than she did, and therefore that issue should have been submitted to the jury. While it is true that appellant consented for appellee to take possession of the building while making the repairs, no time was specified for making the repairs, and it was her duty to make them within a reasonable time, and if she held possession and delayed appellant in resuming possession beyond a reasonable time, then and to that extent she breached the agreement under which she went into possession, and should not be permitted to recover rent for that period of time.
On all the other points presented we rule against the appellant. The lease contract contained no stipulation requiring the landlord to make repairs or releasing the tenant from paying rent on account of damage by fire, or for any other reason; hence we hold that appellant was liable for all the rent sued for, unless appellee consumed more time than was reasonably necessary in making the repairs, and thereby wrongfully deprived appellant of the use of the premises.
For the reason stated, the judgment is reversed and the cause remanded.
Reversed and remanded.
