61 Tex. 128 | Tex. | 1884
If the appellants became the assignees of the leasehold interest conveyed by the contract between Jacob It. Green and Bear Bros. & Hirsch, then they became liable and bound to pay the rents in accordance with that agreement. Harvey v. McGrew, 44 Tex., 413; Wood’s Land. and Ten., 310, 335, and cases cited.
Whether they so became was a question for the jury under the evidence, and this the court properly submitted to the jury.
The acts and contracts of the parties were of such character as to leave it uncertain what the real intention of the parties, under the contract between Le Gierse & Co. and Bear Bros. & Hirsch, of date October 30,1880, was. That contract, tested by itself, would operate an assignment of the lease to Le Gierse & Co. alone. Such, however, is not shown to have been the intention of the parties otherwise than as it may so appear by the language of the contract.
On the same day that contract was made the attachment sued out by Bird & Co. was levied on the same leasehold interest.
On the 2d of November, 1880, Bear Bros. & Hirsch sent to Le Gierse & Co. the following letter:
*132 “Waco, Texas, November 2, 1880.
“ Messrs. Le Gierse & Co., Galveston:
“ Gents : Having transferred you our lease on the ÜST. E. half of lot 4, block '1 (store-house in which we have been doing business), we hereby authorize you to have the property rented out; to apply proceeds of rents collected therefrom as follows, viz.: Pay one-half of said rents each to G. W. Bird & Co., and the other half to credit of claims you hold against us; and when G. W. Bird & Oo. are fully paid and your claim is paid up to within $100 of its total amount, then pay balance of rents you may collect (if any) to Focke & Wilkens, of Galveston, Texas, for our account and credit.
“ Bear Bros. & Hirsch.
“ This supersedes their former instructions to us, stated yesterday.”
This was a letter of instructions from parties who had no right to instruct, if the rights of Le Gierse & Co. were such as the language of their contract of October 30th would evidence; if, however, that contract was unreal, and notwithstanding its existence the estate still vested in Bear Bros. & Hirsch, then they had the right to instruct, or, if that contract was really made for the benefit of the three firms who are now appellants, the proceeds of the estate to be disbursed as Bear Bros. & Hirsch should direct, then, whatever may have been the form of the contract, the appellants were in legal effect assignees, and if the contract really made so contemplated, Bear Bros. & Hirsch might instruct as to manner of distribution of moneys to be realized.
The letter seems to have been acted upon, and if the memorandum which follows the letter was made by Le Gierse & Co., and this its tenor would indicate to be true, then it appears that Bear Bros. & Hirsch had assumed the right to instruct on the day preceding, and that such right was recognized by Le Gierse & Co.
In the ordinary course of business such right could only be recognized by Le Gierse & Co., if in fact the leasehold estate was intended, as between them and Bear Bros. & Hirsch, still to remain in the latter, or to vest in the former in trust for themselves and the other firms now appellants.
The subsequent conduct of the parties is consistent with the existence of such understanding between the parties on the 30th of October.
On that day the attachment in favor of Bird & Co. was levied or the same estate, and when it was foreclosed the property was bought by the three firms now appellant, and a deed, was made by
These, in connection with the management of the property for the benefit of the three firms appellant, were facts to which the jury might look for the purpose of determining whether the title really passed from Bear Bros. & Hirsch by the contract between them and Le Gierse & Co. of October 30th, or by the sheriff’s sale in February succeeding, or for the purpose of determining whether the contract of October 30th was really made for the benefit and in the interest of the three firms; for if either of the last named conditions existed, then the appellants were in legal effect assignees and liable to pay the rents to Green in accordance with the agreement which Bear Bros. & Hirsch had made with him, which, under their written contract, would carry interest on each monthly instalment after the same became due.
If it was thought by the appellants that the charge of the court was not sufficiently full upon the question as to whether or not the title to the leasehold interest really passed by the sale made by the sheriff on the first Tuesday in February, 1881, instructions more clearly presenting that question should have been asked.
The evidence would have justified the finding that the title remained in Bear Bros. & Hirsch until that time, and, under all the facts in the case, the court could not have determined, as matter of law, that the title really vested in Le Gierse & Co. under the contract of October 30, 1880.
The answer sought to relieve the appellants from responsibility, upon the ground that the appellee had impliedly agreed that the appellants might appropriate the rents of the property to their own use without liability, or upon the ground that his acts had been such as to preclude him from, asserting claim against them.
The sole facts upon which these defenses were based were that Green had attempted to collect the rent from Bear Bros. & Hirsch, and had never made demand on appellants until he had failed so to do.
The effort of Green to collect from Bear Bros. & Hirsch was but the exercise of a legal right; for they were bound to him by their contract, and its exercise could in no way have misled or prejudiced the appellants, but would have been to their benefit if successful.
At the same time the appellants, if assignees of the lease, were liable for the rent by reason of their privity of estate, and of this, as
Nothing short of an agreement, express or implied, binding in law, would relieve them from such liability, and the court did not err in instructing the jury that “ the mere fact that the plaintiff, by suit, tried to collect the rents of Bear Bros. & Hirsch would not be sufficient to establish any such implied agreement; and such fact of suit, even if coupled with a knowledge on the part of Green that the defendants were renting the property and applying the rents to the payment of the debts due them from Bear Bros. & Hirsch, would not raise any implied agreement of Green that the rents should be so applied.”
This was not a charge on the weight of evidence.
There is no error in the judgment and it is affirmed.
Affirmed.
[Opinion delivered February 15, 1884.]
