Sherrill v. Kirklin-York Co.

Court of Appeals of Texas

Sherrill v. Kirklin-York Co.

202 S.W. 775, 1918 Tex. App. LEXIS 318

CourtCourt of Appeals of Texas

DecidedFebruary 8, 1918

DocketNo. 1909.

StatusPublished

This text of 202 S.W. 775 (Sherrill v. Kirklin-York Co.) 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

Sherrill v. Kirklin-York Co., 202 S.W. 775, 1918 Tex. App. LEXIS 318 (Tex. Ct. App. 1918).

Pincite

Opinion

LEVY, J.

(after stating the facts as above). The defense sets forth that the lease provided that, “In case said building shall become so injured by fire or other casualty as to render the same unfit for such use, then and in such case this lease shall terminate on the day of the happening of such event.” And it appears that the tenant claimed under this defense that the rent had ceased on August 20, 1915, on the ground that on that day “a severe windstorm came and uplifted a portion of the roof of said building,” and that the building had become untenantable for the purpose of carrying on the business of a grocery store. Appellant insists that the findings of the court do not show that such damage to the building resulted from the windstorm, within the meaning of the stipulation in the lease, as to authorize the tenant to quit the premises and cease paying the rent. The court found that the injury to the building from the windstorm consisted in t.he uplifting from the sheeting and in the bending and rolling back of about two squares of the tin roof on the southeast corner of the building, and as further found by the court:

“As soon thereafter as possible W. S. Kirk-lin, for JBdrklin-York Company, procured C. W. Langenstein, a competent tinner and sheet metal workman, to go up on the said building and repair the roof; the said Langenstein repaired the roof as well as same could be done with the material on hand and with the use of roof cement, a preparation for the purpose of repairing broken tin roofs.”

These facts clearly establish that the injury to the building was slight and merely temporary, and that Jby ordinary repairs the uplifted part of the roofing could be, and was, easily and quickly replaced, and was restored “as well as same could be done with the material on hand and with the use of roof cement, a preparation for the purpose of repairing broken tin roofs.” The stipulation in the lease means, it is concluded, that to authorize the tenant to quit the building and cease paying rent the injury to the building from a casualty like a severe windstorm must be to the extent that the building is unfit for carrying on the business, and cannot be restored to a fit condition by ordinary repairs such as can be made without unreasonable interruption of the business of the tenant. This being the test, the court’s findings of fact do not, it is believed, establish such injury to the building as meant by the lease contract. As a matter of common knowledge a part of a tin roof is as easily replaced as a window or door. The further finding of insufficient repair of the roof is a distinct-fact, and not within the lease contract. Weinsteine v. Harrison, 66 Tex. 546, 1 S. W. 626. If appellee was liable for rent under the terms of the lease, then no other issue can appear in the case from the court’s findings.

The judgment is reformed so as to allow the appellant a recovery also for the rent of October, November, and December, and as so reformed will be affirmed. The costs of the lower courts and of this appeal will be taxed against appellee.

Free access — add to your briefcase to read the full text and ask questions with AI

LEVY, J.

(after stating the facts as above). The defense sets forth that the lease provided that, “In case said building shall become so injured by fire or other casualty as to render the same unfit for such use, then and in such case this lease shall terminate on the day of the happening of such event.” And it appears that the tenant claimed under this defense that the rent had ceased on August 20, 1915, on the ground that on that day “a severe windstorm came and uplifted a portion of the roof of said building,” and that the building had become untenantable for the purpose of carrying on the business of a grocery store. Appellant insists that the findings of the court do not show that such damage to the building resulted from the windstorm, within the meaning of the stipulation in the lease, as to authorize the tenant to quit the premises and cease paying the rent. The court found that the injury to the building from the windstorm consisted in t.he uplifting from the sheeting and in the bending and rolling back of about two squares of the tin roof on the southeast corner of the building, and as further found by the court:

“As soon thereafter as possible W. S. Kirk-lin, for JBdrklin-York Company, procured C. W. Langenstein, a competent tinner and sheet metal workman, to go up on the said building and repair the roof; the said Langenstein repaired the roof as well as same could be done with the material on hand and with the use of roof cement, a preparation for the purpose of repairing broken tin roofs.”

These facts clearly establish that the injury to the building was slight and merely temporary, and that Jby ordinary repairs the uplifted part of the roofing could be, and was, easily and quickly replaced, and was restored “as well as same could be done with the material on hand and with the use of roof cement, a preparation for the purpose of repairing broken tin roofs.” The stipulation in the lease means, it is concluded, that to authorize the tenant to quit the building and cease paying rent the injury to the building from a casualty like a severe windstorm must be to the extent that the building is unfit for carrying on the business, and cannot be restored to a fit condition by ordinary repairs such as can be made without unreasonable interruption of the business of the tenant. This being the test, the court’s findings of fact do not, it is believed, establish such injury to the building as meant by the lease contract. As a matter of common knowledge a part of a tin roof is as easily replaced as a window or door. The further finding of insufficient repair of the roof is a distinct-fact, and not within the lease contract. Weinsteine v. Harrison, 66 Tex. 546, 1 S. W. 626. If appellee was liable for rent under the terms of the lease, then no other issue can appear in the case from the court’s findings.

The judgment is reformed so as to allow the appellant a recovery also for the rent of October, November, and December, and as so reformed will be affirmed. The costs of the lower courts and of this appeal will be taxed against appellee.

Cite This Page — Counsel Stack

Bluebook (online)

202 S.W. 775, 1918 Tex. App. LEXIS 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherrill-v-kirklin-york-co-texapp-1918.

Opinion

Related

Cite This Page — Counsel Stack