Emerson Shoe Co. v. Zesmer

WALKER, Circuit Judge. On November 1, 1919, G. A. Schaub made a lease to Joseph Collins of a three-story building in Dallas, Tex., for a term of 10 years beginning January 15, 1921, for the sum of $105,000, payable in monthly installments of $875, to be paid in advance on the 15th day of each month during said term. The lease provided : “That the lessee may sublet tbe second and third stories of the building for all or any part of the specified time to any person for any purpose not objectionable to the lessor and if objection is made in writing by tbe lessor to the persons or to the use made of the sublet premises then the lessee shall immediately eject such tenants from the premises; * ° * that in case of default in any of the above covenants the lessor * * * may declare the lease forfeited at his discretion.” By an instrument dated October 20, 1920, Collins leased the second and third floors of the building to I. Zesmer for a term of 10 years from January 15, 1921, for the sum of $36,000, payable $300 per month in advance. Collins did not pay the installment of rent due December 15, 1921, under the lease to him. On December 16, 1921, Schaub gave written notice to Collins of the former’s election to declare the lease to the latter forfeited. By a written instrument dated February 7, 1922, Schaub leased the building to the plaintiff in error, Emerson Shoe Company (herein called the plaintiff), the lease contract providing, as stated in the bill of exceptions: “That it should begin as soon as tbe tenant now in possession, who has been adjudged a bankrupt, shall move or be ejected from the first story of the building, and the stock in said first story, being in possession of the trustee of Joseph Collins, bankrupt, it expressly stating that it was understood between the parties that the said .stock would be sold under an order of the referee in bankruptcy, and possession of the property surrendered to lessor, who should thereupon deliver possession thereof, with the tenants occupying the second and third floors in possession to the lessee, at which time the tenancy thereby-granted should begin and continue thereafter for a period of ten years.” Thereafter the plaintiff'brought suit against the defendants in error (herein called the defendants), to recover possession of the building. The defendants entered a disclaimer as to the ground floor of the. building except a right of way and easement of passage over the stairway leading up to the second and third floors of the building. With the exception indicated they denied the right asserted by the suit. Schaub accepted from Zesmer rent for the second and third floors for the months beginning December 15, 1921, January 15, 1922, and February 15, 1922; the payments being made by checks for $300 each, the first of which was dated December 15, 1921. A check for the same sum, dated March 15, 1922, and payable to Emerson Shoe Company, was returned by that company. Schaub did not acquire possession from the trustee in bankruptcy of Collins until March 14, 1922. The court’s refusal to give a requested charge to the jury to return a verdict for the plaintiff was excepted to.. There was conflicting evidence as to the circumstances under which Zesmer was permitted to retain possession of the second and third floors of the building after the lease to Collins was declared forfeited. A result of the annulment of the lease to Collins was that Zesmer, the subtenant of Collins, thereafter had no right of possession ex [492] cept such as he acquired by a contract or agreement binding on Schaub, the original lessor. Doyle v. Scott (Tex. Civ. App.) 134 S. W. 828; Brock v. Desmond, 154 Ala. 634, 45 South. 665, 129 Am. St. Rep. 71. In behalf of the defendants it was contended that Schaub assented to the sublease of Collins to Zesmer remaining in effect after the annulment of the original lease to Collins, the stipulated rent to be paid to Schaub. The phase of the evidence relied on to support this contention was to the following effect: On the 14th or 15th of December, 1921, Schaub notified Zesmer that Collins was about to go into bankruptcy, and directed Zesmer to see Schaub’s attorney, Judge Short, about his (Zesmer’s) rent. Thereupon Zesmer saw Judge Short on December 15th and informed him that he (Zesmer) was the tenant of the second and third floors of the building. Judge Short asked Zesmer when his rent was due, and Zesmer stated that it was due that day, and gave Judge Short a $300 check therefor, which check, dated December 15, 1921, was delivered to and cashed by Schaub. When that check was given the bankruptcy of Collins had not occurred. Zesmer gave Judge Short another $300 check on January 15, 1922, and a third check for the same amount on February 15, 1922. Zesmer stated to Judge Short that he had spent plenty of money in fixing the place up and that he was willing to carry out the lease to Collins at the rent Collins had paid. Zesmer never offered to any one the monthly rental called for by the lease to Collins. Zesmer spoke to Judge Short several times about taking over the Collins lease. So far as appears, the sublease of Collins to Zesmer was never mentioned, and Schaub and his lawyer did not know of its terms or the period it was to cover. We are of opinion that there was an absence of evidence to support a finding that Schaub or his lawyer expressly or impliedly agreed to the sublease of Collins to Zesmer remaining in effect. . Under the circumstances of the givinv of the notice by Schaub to Zesmer, it meant merely a warning that, because of the-impending bankruptcy of Collins^ a payment to him of rent for the second and third floors would confer no right .to continued possession by the occupant thereof, and that the latter could acquire such right only by dealing with the owner of the property. There was no evidence tending to prove that Schaub consented that a cancellation of his lease to Collins because of a contemplated default in the payment of the-stipulated rent should be ineffective as to the second and third floors of the rented building, or that the sublease to Zesmer should remain in force; the rent it called for to be paid to Schaub. When Schaub gave notice of the cancellation of the original lease, that had happened which entitled him to cancel, namely, a failure to pay rent for the whole building when it was due. There was no evidence that Schaub consented to forego or abridge that right upon rent being paid for only the second and third floors. In the absence of any evidence tending to prove that it was even sug- , gested that the sublease to Zesmer be kept in force, the fact that for three successive months, while the trustee in bankruptcy of Collins retained possession of the ground floor, Schaub accepted from Zesmer, as rent for the second and third floors, the amount of monthly rental called for by the sublease, is not enough to support an inference that Schaub consented to be bound by that instrument. We do not think [493] that any evidence adduced tended to prove that the minds of Schaub or his lawyer and Zesmer met in an agreement to adopt, as a contract between Schaub and Zesmer, the sublease made by Collins. There was no evidence to support a finding that the defendants acquired a right of possession of any part of the premises sued for beyond the period for which Schaub accepted rent. We are of opinion that under the evidence adduced the plaintiff was entitled to recover possession of the property sued for, and that the court erred in the above-mentioned ruling. Because of that error, the judgment is reversed.