Johnson v. Ft. Worth Driving Club

Court of Appeals of Texas

Johnson v. Ft. Worth Driving Club

144 S.W. 1041, 1912 Tex. App. LEXIS 977

CourtCourt of Appeals of Texas

DecidedFebruary 10, 1912

StatusPublished

Cited by1 cases

This text of 144 S.W. 1041 (Johnson v. Ft. Worth Driving Club) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson v. Ft. Worth Driving Club, 144 S.W. 1041, 1912 Tex. App. LEXIS 977 (Tex. Ct. App. 1912).

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Opinion

DUNKLIN, J.

Robert G. Johnson instituted this suit against the Ft. Worth Driving Club to cancel a lease held by the defendant on a tract of land owned by the plaintiff, and from a judgment adverse to the plaintiff he has appealed.

[1] The property was leased for the purpose of maintaining thereon a race track and fair grounds, and the lease, which was in writing, contained a stipulation which gave to the owner of the property the right to declare the lease forfeited in the event the lessee should permit the sale of intoxicating liquors upon the premises. A breach of this stipulation was made one of the grounds of plaintiff’s suit to cancel the lease, and the issue thus presented is the only issue involved on this appeal.

*1042 The evidence shows that the lessee sublet the premises to the Ft. Worth Fair Association for one month ending May 12, 1909. During a racing exhibition given by the sub-lessee while holding under that lease, intoxicating liquors were sold upon the premises. The original lessee procured from the district judge a temporary writ of injunction restraining such sales, and that injunction was, upon appeal therefrom by the sub-lessee, finally sustained by our Supreme Court. See Ft. Worth Driving Club v. Ft. Worth Fair Association (Sup.) 122 S. W. 254. After the termination of the sublease under which the sales made the basis of that suit occurred, the lessee again sublet the premises to the Ft. Worth Fair Association for another month beginning May 12, 1909, and ending June 12, 1909. Upon the trial of this suit it was agreed by the parties that intoxicating liquors were sold upon the leased premises during the time covered by the second sublease, and plaintiff’s suit for a cancellation was by him expressly limited to those sales. The record before us further shows that upon the trial the construction placed by plaintiff upon.the forfeiture clause in the lease above noted was that it imposed upon the defendant the duty to resort to the same legal proceedings, if necessary, to prevent such sales as had been instituted to restrain sales during the term of the first sublease, and that in failing so to do the defendant had permitted the sale of intoxicating liquors within the meaning of the forfeiture clause, and that the lease was thereby forfeited. Counsel for plaintiff expressly stated to the trial judge, in substance, that such was plaintiff’s interpretation of the term “permit” used in the forfeiture clause relative to sales of intoxicating liquors upon the leased premises. We think that the forfeiture clause imposed upon defendant the duty to exercise at least that degree of diligence to prevent such' sales. This obviates the necessity of a discussion by us of the proper legal interpretation of the term “permit,” and in saying this we do not wish to be understood as intimating that the interpretation adopted by appellant was not a proper one at all events. See Holly v. Simmons, 38 Tex. Civ. App. 124, 85 S. W. 327; Id., 99 Tex. 230, 89 S. W. 776. With that interpretation as a guide, there was no error in the court’s instruction to the jury to return a verdict in defendant’s favor if it did not permit such sales, even though the same were made upon the leased premises during the period in controversy.

[2] On April 29, 1909,_ plaintiff received from defendant payment of -rents covering a period terminating September 21, 1909. The court instructed the jury to return a verdict in defendant’s favor if at the time plaintiff accepted this rent he knew that intoxicating liquors were upon the premises-for the purpose of sale. This was tantamount to a peremptory instruction as plaintiff, himself, testified that such were the facts. But he further testified that his-acceptance of those rents was upon defendant’s assurance that it -would not permit further sales of intoxicating liquors upon the premises. Under those circumstances, the acceptance of the rents was not a waiver of the forfeiture clause in the lease, and hence the charge was erroneous. See 24 Cyc. 1362.

For this error the judgment is reversed, and the cause remanded.

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DUNKLIN, J.

Robert G. Johnson instituted this suit against the Ft. Worth Driving Club to cancel a lease held by the defendant on a tract of land owned by the plaintiff, and from a judgment adverse to the plaintiff he has appealed.

[1] The property was leased for the purpose of maintaining thereon a race track and fair grounds, and the lease, which was in writing, contained a stipulation which gave to the owner of the property the right to declare the lease forfeited in the event the lessee should permit the sale of intoxicating liquors upon the premises. A breach of this stipulation was made one of the grounds of plaintiff’s suit to cancel the lease, and the issue thus presented is the only issue involved on this appeal.

*1042 The evidence shows that the lessee sublet the premises to the Ft. Worth Fair Association for one month ending May 12, 1909. During a racing exhibition given by the sub-lessee while holding under that lease, intoxicating liquors were sold upon the premises. The original lessee procured from the district judge a temporary writ of injunction restraining such sales, and that injunction was, upon appeal therefrom by the sub-lessee, finally sustained by our Supreme Court. See Ft. Worth Driving Club v. Ft. Worth Fair Association (Sup.) 122 S. W. 254. After the termination of the sublease under which the sales made the basis of that suit occurred, the lessee again sublet the premises to the Ft. Worth Fair Association for another month beginning May 12, 1909, and ending June 12, 1909. Upon the trial of this suit it was agreed by the parties that intoxicating liquors were sold upon the leased premises during the time covered by the second sublease, and plaintiff’s suit for a cancellation was by him expressly limited to those sales. The record before us further shows that upon the trial the construction placed by plaintiff upon.the forfeiture clause in the lease above noted was that it imposed upon the defendant the duty to resort to the same legal proceedings, if necessary, to prevent such sales as had been instituted to restrain sales during the term of the first sublease, and that in failing so to do the defendant had permitted the sale of intoxicating liquors within the meaning of the forfeiture clause, and that the lease was thereby forfeited. Counsel for plaintiff expressly stated to the trial judge, in substance, that such was plaintiff’s interpretation of the term “permit” used in the forfeiture clause relative to sales of intoxicating liquors upon the leased premises. We think that the forfeiture clause imposed upon defendant the duty to exercise at least that degree of diligence to prevent such' sales. This obviates the necessity of a discussion by us of the proper legal interpretation of the term “permit,” and in saying this we do not wish to be understood as intimating that the interpretation adopted by appellant was not a proper one at all events. See Holly v. Simmons, 38 Tex. Civ. App. 124, 85 S. W. 327; Id., 99 Tex. 230, 89 S. W. 776. With that interpretation as a guide, there was no error in the court’s instruction to the jury to return a verdict in defendant’s favor if it did not permit such sales, even though the same were made upon the leased premises during the period in controversy.

[2] On April 29, 1909,_ plaintiff received from defendant payment of -rents covering a period terminating September 21, 1909. The court instructed the jury to return a verdict in defendant’s favor if at the time plaintiff accepted this rent he knew that intoxicating liquors were upon the premises-for the purpose of sale. This was tantamount to a peremptory instruction as plaintiff, himself, testified that such were the facts. But he further testified that his-acceptance of those rents was upon defendant’s assurance that it -would not permit further sales of intoxicating liquors upon the premises. Under those circumstances, the acceptance of the rents was not a waiver of the forfeiture clause in the lease, and hence the charge was erroneous. See 24 Cyc. 1362.

For this error the judgment is reversed, and the cause remanded.

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144 S.W. 1041, 1912 Tex. App. LEXIS 977, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-ft-worth-driving-club-texapp-1912.

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