Otis McNABB, Appellant, v. TAYLOR OIL FIELD RENTAL COMPANY, Appellee.
No. 14672.
Court of Civil Appeals of Texas. San Antonio.
April 17, 1968.
Rehearing Denied May 29, 1968.
In concluding that the court judicially knew that including plaintiff‘s name on a “hot check” list imported commission of a crime the court apparently relied on language in Elder v. Evatt, Tex.Civ.App., 154 S.W.2d 684, no writ. The language in that case is not authoritative, and does not control here. It was a plea of privilege appeal, of which the Supreme Court does not ordinarily have jurisdiction. It contained dictum which was confined to common knowledge of the meaning of language “in this section of the country“, where it was said it imports violation of criminal law.
We are not familiar with any such “generally understood meaning“. Such terms as “rubber check“, “cold check” and “hot check” are slang words commonly used in the vernacular as colloquialisms or provincialisms to denote checks returned for “insufficient funds“, or because the drawer‘s bank account is temporarily inadvertently depleted; and they do not necessarily, inexorably or unquestionably imply fraudulent intent so as to import criminal violation.
The language in Elder v. Evatt relied upon, however, was not necessary to the decision in that case, for the court held that the context, containing additional words constituting a threat to send the maker “to the pen” or “over the road” was sufficient to support a finding defendant had made a charge of crime so as to constitute sufficient evidence of a venue fact.
The very check which plaintiff gave, which was returned to defendant in the instant case, and which plaintiff redeemed by payment of cash to defendant, could have been understood by the ordinary person (as was found to be understood by the jury) to be a “hot check“. The meaning of the words when applied to the list on which his name appeared was a question for the jury.
The third finding to the effect that defendant had no good faith belief that plaintiff had not violated the law is immaterial. The finding could only be applicable to the non-existent questions of exemplary damages and privilege.
It is not necessary to pass on appellant‘s other points. Appellee‘s cross-points are overruled. The judgment is reversed and here rendered on the verdict that plaintiff take nothing.
MCDONALD, C. J., not participating.
Michael W. Wagner, San Antonio, for appellant.
Burris & Burris, Alice, for appellee.
KLINGEMAN, Justice.
Under date of September 1, 1966, plaintiff and defendant entered into the following lease contract:
“For and in consideration of the sum of Seven Thousand Five Hundred Dol-
lars ($7,500.00), received of Taylor Oil Field Rental Equipment Company, of Houston, I, Otis McNabb, have this date leased for hunting purposes the property known as Canelo Ranch, located in Kenedy County, Texas, comprising eight thousand (8,000) acres, more or less, for a term of twelve (12) months, said term commencing on the first day of September, 1966, and terminating on the 31st day of August, 1967.” (Emphasis added.)
Defendant, by his second point of error, asserts that this cause should be reversed and rendered because the court erred in holding that defendant breached the lease contract.
In a non-jury case where no findings of fact or conclusions of law are filed by the trial court, judgment should be affirmed if there is evidence to support it on any theory of the case. City of Abilene v. Meek, 311 S.W.2d 654 (Tex.Civ.App.-Eastland 1958, writ ref‘d); Western Woods Products Company v. Bagley, 274 S.W.2d 111 (Tex.Civ.App.-Texarkana 1954, Writ ref‘d n. r. e.). See also Calvert, “No Evidence and Insufficient Evidence Points of Error,” 38 Tex.Law Rev. 361, 362-365.
While the evidence with regard to breach of contract is contradictory in some respects, the testimony is undisputed that on or about January 21, 1967, defendant went to the hunting lease and removed plaintiff‘s lock from the gate on the premises and replaced it with defendant‘s own lock. Testimony is further undisputed that on January 22, 1967, defendant returned plaintiff‘s lock to plaintiff‘s agent. Plaintiff‘s agent testified that by changing the lock defendant locked in two of plaintiff‘s customers who were hunting on the premises, and that such action caused plaintiff embarrassment and inconvenience. The evidence also shows that for a period of approximately one week while the quail hunting season was still going on, plaintiff had no key to such lock and that a key was not sent to plaintiff until after plaintiff‘s attorney had written defendant that they considered the lease breached and made demand upon plaintiff for return of the unused portion of the lease rental.
If the landlord‘s conduct is such as to materially interfere with the beneficial use of the premises and tenant leaves as a result thereof, it is a constructive eviction. Silberstein v. Laibovitz, 200 S.W.2d 647 (Tex.Civ.App.-Austin 1947, no writ); Nabors v. Johnson, 51 S.W.2d 1081 (Tex.Civ.App.-Waco 1932, no writ);
The trial court‘s implied finding that defendant breached the contract is sufficiently supported by evidence of probative value and defendant‘s second point of error is overruled.
Defendant‘s first point of error asserts that the trial court erred in failing to apply the correct measure of damages. The judgment of the trial court decreed “that the plaintiff, TAYLOR OIL FIELD RENTAL COMPANY, recover of and from the defendant, OTIS McNABB, the sum of $4,583.00, being the unused portion of the rent paid in advance, * * *”
Plaintiff asserts that this is the correct measure of damages for the reason that the cash rental paid in advance for the term beginning September 1, 1966, and ending August 31, 1967, was $7,500.00, which amounts to a monthly rental of $625.00; that defendant breached the lease on January 21, 1967, constituting a period of seven months and ten days total breach, and that, based on a monthly rental of $625.00, this would aggregate $4,583.00. However, there is no evidence that the rental was based on a monthly rate.
Generally, the injured lessee may recover from his landlord the difference between the market rental value of the leasehold for the unexpired term of the lease and the reserved rentals stipulated
Defendant, after being questioned by plaintiff‘s attorney about various details of the negotiations relative to this hunting lease, including discussion as to who would be allowed to hunt thereon, the type of facilities to be furnished, what utilities were to be supplied, and other matters, also testified that in such negotiations there was a discussion that deer, turkey, quail, javelina, whitewing and doves were to be hunted. He further testified that the whitewing hunting season was confined to the month of September, mourning dove season from about October 1 to sometime in November, deer season from November 16 to December 31, quail from December 1 to January 31, and that there was no other game there to hunt.
Our Courts take judicial notice of the public statutes of this State, and the open season or period of time in which it is lawful to hunt game animals and game birds, including turkey, whitewing doves, mourning doves, quail, javelina and deer, is set forth in the
It is the object and purpose of the law to compensate a tenant who has been wrongfully evicted from the premises for the actual loss he has sustained. B. F. Avery & Sons’ Plow Co. v. Kennerly, supra. Since the entire rent in this case had been paid in advance, the proper measure of damage to be recovered by plaintiff from defendant is the market rental value of the leasehold for the unused term of the lease. There is no evidence in the record as to the market rental value of this hunting lease from January 21, 1967, to August 31, 1967, the unexpired term of the lease. Under the law and the evidence, the measure of damages applied by the trial court was incorrect, and the record does not support a judgment in the amount of $4,583.00 for the unused portion of the rent paid in advance. Defendant‘s first point of error is sustained.
Defendant asserts two other points of error which, if sustained, would require a reversal and remand, but in view of our holding herein we do not deem it necessary to pass on such points.
Defendant does not complain of that portion of the judgment which awards plaintiff $85.00 for conversion of the electric water pump, and that portion of the judgment is affirmed and severed from said cause. Except for such severed portion, the judgment of the trial court is reversed and the cause remanded for a new trial.
CADENA, Justice (dissenting).
I would affirm the judgment below.
There are, of course, obvious differences between the liabilities and rights of parties to a hunting “lease” and the relations between a landlord and tenant under an ordinary lease. But assuming, despite these differences, that the same rules are applicable in case of a total breach by the “lessor,” the trial judge committed no error.
Here, for a single payment of $7,500.00, paid in advance, appellee acquired the right to hunt on the Canelo Ranch for a period of one year. Since it is undisputed that appellant wrongfully interfered with the
In the true landlord-tenant relationship, the rule seems to be that a tenant who has paid rent in advance for a period extending beyond the time of eviction is entitled to recover the proportionate share of the advance payment made by him. Everson v. Albert, 261 Mich. 182, 246 N.W. 88 (1933);