BROWN, Associate Justice.
The Court of Civil Appeals for the Second Supreme Judicial District has certified to this court the following questions upon the facts stated:
“1. On the-day of June, 1888, appellee, Maddox, by a verbal contract, leased and rented to appellants, Bateman & Bro., a certain brick building situated in Tarrant County, Texas, upon the following terms: Bateman & Bro. were to have the building for five years. They were to rent the building for one year absolutely at the rental of $400 per month, payable monthly, with a right to move into it at any time after the 1st of •October, but their rent should commence December 1,1888. They were to have the right to keep the building at the expiration of the first year two years longer, at the increased rent of $500 per month; and at the expiration of this two years term, to keep the building two years longer at the increased rental of $600 per month. It was also agreed that if Bate-man & Bro. did not desire to keep the building for either of the two years terms mentioned, they were to give Maddox ninety days notice of their intention 'to leave the building before the commencement of either of the two terms.
“ Sometime in October, after making this verbal contract in June, Bateman & Bro. moved into the building and paid the stipulated rent regularly at the end of each month during the first year, according to the terms of the contract. They gave no notice at the expiration of said year of their intention to abandon the building, but continued to occupy it during the entire second year (which would be the first year of the first two years term), paying the stipulated rent of $500 per month that year, and continued twenty-two days into the third year, when on the 22d day of December, 1890, they failed in business, and executed a chattel mortgage to Harrison and Kernaghan, as trustees for the benefit of certain named creditors, which conveyed the stock of goods then in the building. It will thus be seen that Bateman & Bro. did not themselves pay any rent on the third year, but they did arrange for the trustees •above named to pay the rent for the month of December of that year, ■which they subsequently did, and notified Maddox that they would not longer occupy the building.
“ On the 19th day of January, 1891, Maddox sued out before a justice of the peace of Tarrant County a distress warrant against Bateman & Bro. for the stipulated rent of $500 per month for the unexpired part of the ■third year of the lease entered upon as aforesaid. This warrant was made .returnable to the District Court of Tarrant County on or before the 11th
day of May, 1891, that being the first day of the next succeeding term, thereof.
“ The warrant was levied on the day after its issuance upon the goods, which were then still in the rented building. These goods were replevied by the trustees aforesaid, and we understand from the record, although it is not specifically so stated, were sold by them and removed from tie-building more than thirty days before the filing of the petition in this-case, as herein after stated.
“On the 6th day of February, 1891, after the issuance of the distress-warrant, the Legislature passed an act dividing Tarrant County into two-districts.
“ Maddox filed his petition in this (the distress warrant) case upon the docket of the Forty-eighth District on May 9, 1891. There is nothing-in the record to show whether the February Term of this court had then adjourned or was then in session.
“There is nothing in the record to show to which of these District. Courts the case would have fallen had the warrant been returned in time-for the first term of the Forty-eighth District after its issuance; nor is-there anything to show at what time the warrant and citation were actually filed by the officer with the clerk. In fact, there is nothing to-show that a citation was issued at the time of the issuance of the warrant; but as no question is raised as to this, it is presumed that it was.
“ Both Bateman
&
Bro. and the trustees named above answered to the merits on September 12, 1891, and at the October Term succeeding, to-wit, on November 12, 1891, both Bateman & Bro. and said trustees filed separate motions to dismiss this proceeding, upon the ground that appellee had not filed his petition at the return term of the writ, as required by the statute under which the warrant was issued. These motions werp overruled by the court, and the first question presented for your decision is, Did the court err in this ruling, and should either or both of these motions have been sustained ? j
“2. In case it be held that the court correctly overruled these motions, were Bateman & Bro. liable under the facts and contract herein before-stated for rent for the unexpired part of the third year of the verbail lease?”
To the first question we answer: The motions were properly overruled by the court. The suit was commenced by the issuing of the distress-warrant, the citation, and their return into court. The filing of the petition was simply the declaration of the cause of action in detail, so as to-inform the' defendants of the grounds of plaintiff’s claim.
The reason for requiring the petition to be filed on or before appearance day of the first term of the court after the issuance of the distress-warrant is, that the defendant may be informed of the particulars of plaintiff’s demand against him before he is required to answer. If the:
petition is not filed as required by the statute, the defendant may move the dismissal of the case, and relieve himself of further attendance upon the court. If, however, the petition be filed before the case is dismissed by the court, there is no good reason why the cause should be dismissed. Maynard v. Lockett, 1 Posey’s U. C., 527.
The law requires the defendant in ordinary suits to answer on or before appearance day of the first term of the court after service, but until judgment by default is taken he may answer at any time. When the plaintiff has been required by order of the court to give security for costs, the law requires that he comply with the order on or before the first day of the next term, or the case “ shall be dismissed.” Rev. Stats., art. 1436. Yet if the bond be filed at any time before the case is dismissed, it will be a good compliance. Hayes v. Cage, 2 Texas, 501. We see no difference in the principle that should govern the construction of the two articles of the statute.
We are referred to Bruner v. Dubard, 1 White & Wilson’s Civil Cases, section 391; Braley v. Bailey, idem, 790; and Jones v. Stone, 2 Willson’s Civil Cases, 359, in support of the contrary doctrine to that here announced. These cases rest upon the reason, that this being harsh remedy, the proceedings must comply strictly with the statute. This is correct as to the affidavit and bond and all that is done for seizing the property, but there is no reason why such rule should be applied to the pleading in this case. In attachment suits the parties must, in suing out the writ, comply strictly with the requirements of the statute, but it has never been held that the rule applied to pleadings in such cases. The affidavit and bond in attachment suits can not be amended, but the petition may be amended as in other cases.
To the second question we answer: Bateman
&
Free access — add to your briefcase to read the full text and ask questions with AI
BROWN, Associate Justice.
The Court of Civil Appeals for the Second Supreme Judicial District has certified to this court the following questions upon the facts stated:
“1. On the-day of June, 1888, appellee, Maddox, by a verbal contract, leased and rented to appellants, Bateman & Bro., a certain brick building situated in Tarrant County, Texas, upon the following terms: Bateman & Bro. were to have the building for five years. They were to rent the building for one year absolutely at the rental of $400 per month, payable monthly, with a right to move into it at any time after the 1st of •October, but their rent should commence December 1,1888. They were to have the right to keep the building at the expiration of the first year two years longer, at the increased rent of $500 per month; and at the expiration of this two years term, to keep the building two years longer at the increased rental of $600 per month. It was also agreed that if Bate-man & Bro. did not desire to keep the building for either of the two years terms mentioned, they were to give Maddox ninety days notice of their intention 'to leave the building before the commencement of either of the two terms.
“ Sometime in October, after making this verbal contract in June, Bateman & Bro. moved into the building and paid the stipulated rent regularly at the end of each month during the first year, according to the terms of the contract. They gave no notice at the expiration of said year of their intention to abandon the building, but continued to occupy it during the entire second year (which would be the first year of the first two years term), paying the stipulated rent of $500 per month that year, and continued twenty-two days into the third year, when on the 22d day of December, 1890, they failed in business, and executed a chattel mortgage to Harrison and Kernaghan, as trustees for the benefit of certain named creditors, which conveyed the stock of goods then in the building. It will thus be seen that Bateman & Bro. did not themselves pay any rent on the third year, but they did arrange for the trustees •above named to pay the rent for the month of December of that year, ■which they subsequently did, and notified Maddox that they would not longer occupy the building.
“ On the 19th day of January, 1891, Maddox sued out before a justice of the peace of Tarrant County a distress warrant against Bateman & Bro. for the stipulated rent of $500 per month for the unexpired part of the ■third year of the lease entered upon as aforesaid. This warrant was made .returnable to the District Court of Tarrant County on or before the 11th
day of May, 1891, that being the first day of the next succeeding term, thereof.
“ The warrant was levied on the day after its issuance upon the goods, which were then still in the rented building. These goods were replevied by the trustees aforesaid, and we understand from the record, although it is not specifically so stated, were sold by them and removed from tie-building more than thirty days before the filing of the petition in this-case, as herein after stated.
“On the 6th day of February, 1891, after the issuance of the distress-warrant, the Legislature passed an act dividing Tarrant County into two-districts.
“ Maddox filed his petition in this (the distress warrant) case upon the docket of the Forty-eighth District on May 9, 1891. There is nothing-in the record to show whether the February Term of this court had then adjourned or was then in session.
“There is nothing in the record to show to which of these District. Courts the case would have fallen had the warrant been returned in time-for the first term of the Forty-eighth District after its issuance; nor is-there anything to show at what time the warrant and citation were actually filed by the officer with the clerk. In fact, there is nothing to-show that a citation was issued at the time of the issuance of the warrant; but as no question is raised as to this, it is presumed that it was.
“ Both Bateman
&
Bro. and the trustees named above answered to the merits on September 12, 1891, and at the October Term succeeding, to-wit, on November 12, 1891, both Bateman & Bro. and said trustees filed separate motions to dismiss this proceeding, upon the ground that appellee had not filed his petition at the return term of the writ, as required by the statute under which the warrant was issued. These motions werp overruled by the court, and the first question presented for your decision is, Did the court err in this ruling, and should either or both of these motions have been sustained ? j
“2. In case it be held that the court correctly overruled these motions, were Bateman & Bro. liable under the facts and contract herein before-stated for rent for the unexpired part of the third year of the verbail lease?”
To the first question we answer: The motions were properly overruled by the court. The suit was commenced by the issuing of the distress-warrant, the citation, and their return into court. The filing of the petition was simply the declaration of the cause of action in detail, so as to-inform the' defendants of the grounds of plaintiff’s claim.
The reason for requiring the petition to be filed on or before appearance day of the first term of the court after the issuance of the distress-warrant is, that the defendant may be informed of the particulars of plaintiff’s demand against him before he is required to answer. If the:
petition is not filed as required by the statute, the defendant may move the dismissal of the case, and relieve himself of further attendance upon the court. If, however, the petition be filed before the case is dismissed by the court, there is no good reason why the cause should be dismissed. Maynard v. Lockett, 1 Posey’s U. C., 527.
The law requires the defendant in ordinary suits to answer on or before appearance day of the first term of the court after service, but until judgment by default is taken he may answer at any time. When the plaintiff has been required by order of the court to give security for costs, the law requires that he comply with the order on or before the first day of the next term, or the case “ shall be dismissed.” Rev. Stats., art. 1436. Yet if the bond be filed at any time before the case is dismissed, it will be a good compliance. Hayes v. Cage, 2 Texas, 501. We see no difference in the principle that should govern the construction of the two articles of the statute.
We are referred to Bruner v. Dubard, 1 White & Wilson’s Civil Cases, section 391; Braley v. Bailey, idem, 790; and Jones v. Stone, 2 Willson’s Civil Cases, 359, in support of the contrary doctrine to that here announced. These cases rest upon the reason, that this being harsh remedy, the proceedings must comply strictly with the statute. This is correct as to the affidavit and bond and all that is done for seizing the property, but there is no reason why such rule should be applied to the pleading in this case. In attachment suits the parties must, in suing out the writ, comply strictly with the requirements of the statute, but it has never been held that the rule applied to pleadings in such cases. The affidavit and bond in attachment suits can not be amended, but the petition may be amended as in other cases.
To the second question we answer: Bateman
&
Bro. were the tenants of Maddox for the year beginning December 1, 1890, and legally liable to him for the rent of that year at the rental of $500 per month.
That portion of the statute which applies to the facts of this case is as follows:
“Article 2464. No action shall be brought in any of the courts in any of the following cases, unless the promise or agreement upon which the action shall be brought, or some memorandum thereof, shall be in writing, signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized: * * *
“ 4. Upon any contract for the sale of real estate, or the lease thereof for a longer term than one year.
“5. Upon any agreement which is not to be performed within the space of one year from the making thereof.”
Clause 5 of the statute would prohibit a verbal agreement for the lease of real estate for one year, to begin in future, if it were not that clause 4 provides specially a rule to govern such leases. The rule of construe
tion is, that a special provision in a statute will control a general provision which would otherwise include that mentioned in the particular provision. Endl. Stat. Const., sec. 399, p. 560.
A lease for a term not longer than one year may be made to commence in the future by verbal contract, and will be held to be binding under tfye statute. Sobey v. Brisbee, 20 Iowa, 105; Anderson v. May, 10 Heisk., 90; Eaton v. Whitaker, 18 Conn., 230; Huffman v. Starks, 31 Ind., 474; Young v. Dake, 5 N. Y., 468; Becar v. Flues, 64 N. Y., 518; Sears v. Smith, 3 Colo., 287; Randall v. Thompson Bros., decided by the Commission of Appeals, 1881.
There is a marked difference in the language of clauses 4 and 5 of tne article. The fifth prohibits the enforcement of contracts which are not to ■be performed “ within one year from the making thereof,” limiting both the time of commencement and continuance; while the fourth clause prohibits the enforcement of leases of real estate “for a longer term than ■one year,” limiting and fixing only the time of duration. If the Legislature had intended that leases should be limited to one year from the “time of making,” then it was useless to mention them in clause 4, for ■they would have been embraced in clause 5. The rule above stated is ■clearly applicable to the construction of the two clauses of this article. .
In Sobey v. Brisbee, supra, the court said: “ Most leases, and indeed we may say all, with here and there an exception, take effect in futuro. Farm leases, for instance, are made, as a rule, one, two, or three months before the commencement of the term. And in view of the usual custom, •and indeed little less than the general custom, this statute, if construed as appellant claims, would have but little practical force or value.” Thp Legislature must be presumed to have understood the subjects upon which it legislated, and that the difference in the provisions was founded •upon sound reasons, such as are quoted above. ^
That part of the verbal contract by which Bateman & Bro. were to be allowed to keep the property for two years after the expiration of thp first year was contrary to our statute, and could not have been enforced by either party. But Bateman & Bro. having continued in possession after the expiration of the first year without objection on the part of Maddox, by the fact of continuing possession became tenants for the year on the same terms as the former year. San Antonio v. French 80 Texas ( 575; Tayl. on Landl. and Ten., 522, 525.
If, however, the entry had been made under the verbal agreement for two years, the taking of possession and paying rent for the year, thereby showing that the intention was to hold by the year, would have converted that into a tenancy for that year, upon the implied contract that the lay would raise from the acts of the parties. 2 Reed on Stat. Frauds, sec. 804; Browne on Stat. Frauds, sec. 38. In either event Bateman
&
Bro.,
by holding over, became the tenants of Maddox for the year commencing December 1,1889.
Delivered April 9, 1894.
Bateman & Bro. being in possession under a lease valid under the statute, their continuance of the possession would not be construed to be .an adoption of the terms of the verbal contract for two years, but it would in law imply the making of a contract that could lawfully be made; that is, á contract for the succeeding year the same as that for the year just terminated. Maddox could not have enforced the payment of more than $400 per month for the second year until by common consent of the parties the rental of $500 per month was adopted, which must be presumed from its payment by the tenant and receipt by the landlord for the second year, showing the intention to change the contract in that particular. By these payments this sum was established as the rental for the second year, which would be continued for the third year by the act of holding over after the expiration of the lease for the next preceding year. Singer Mfg. Co. v. Sayre, 75 Ala., 270.
It follows that the holding over by Bateman & Bro. after the expiration of the second year constituted them tenants of Maddox for the third year at the same rent as was paid during the preceding year.
At the time that Bateman & Bro. made the chattel mortgage, they could by law have held the premises for that year against the demands of their landlord, and they were equally bound to pay rents for the property for the same time. Neither they nor their trustees could surrender or .abandon the premises without the consent of the landlord, and thus terminate the lease. Marsalis v. Pittman, 68 Texas, 624.
We are not called upon to determine what effect, if any, the taking of possession of the house by Maddox and renting it out after abandonment •of it by the trustees would have upon the rights of the parties in this case, nor under what circumstances a part performance by the lessee of a verbal contract of lease of real estate for a longer term than one year would take it out of the operation of the statute of frauds, if at all.