PICKRELL ET AL. v. BUCKLER ET AL

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Docket Number

Application No. 15339.

Attorney(S)

S. N. Russell and Goggin, Hunter Brown, for plaintiff in error. If upon a fair, reasonable construction giving to all ambiguities the reasonable interpretation most favorable to the pleading, there appear in it sufficient facts to show a legal right in the pleader, the general demurrer should be overruled. Town's Pleading, second edition, p. 531; Williams v. Warnell, 28 Tex. 610; Erie Telegraph etc. v. Grimes, 82 Tex. 89; Williams v. Williams, 28 Tex. 610. A general demurrer does not reach a mere informality of averment, and any difficulty which might have been cured if pointed out by a special exception is not reached by a general demurrer. Harry v. Pinckney, 55 S.W. 38. The sufficiency of the petition and of the cause of action asserted is often dependent upon the construction placed upon the contract by the parties themselves. The contract should be construed in the light of the surrounding circumstances at the time it was entered into. The verbal negotiations of the parties leading up to the contract may be looked to to make clear the intent, purposes, and rights of the parties in the matter of its execution. North v. Atlas Brick Co., 281 S.W. 608; DeFriest v. Bradley, 78 N.E. 467 (Mass.). On general demurrer the court necessarily cannot be advised as to such matters, but can only be advised as to this after hearing the evidence. The rule of law giving to the courts the right to determine in such cases the reasonable rental value, entered into the contract itself became a part of it and defined and regulated the right of the parties. Smith v. Butcher, 223 S.W. 166; Texas City Transport Co. v. Winters, 224 S.W. 1087; Mix v. Board of Commissioners, 112 P. 215, 32 L. R. A. (N. S.) 534. Turney, Burges, Culwall, Holliday Pollard, for Mrs. Buckler.

Judges

PER CURIAM:

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C. S. PICKRELL AND THE ELITE CONFECTIONERY COMPANY OF EL PASO v. MRS.C. N. BUCKLER AND W. T. GRANT COMPANY.

Cases Criticised — Lease — Contract for Renewal.

Declining to approve the holding of the Court of Civil Appeals herein that the covenant for renewal of the lease here involved was void for uncertainty (Pickrell v. Buckler, 293 S.W. 667) the court hold that their judgment was correct and refuse writ of error on the ground that the contracts of the parties did not grant plaintiff in error a right or option to renew the lease more than one time. (P. 568).

PER CURIAM:

We are not inclined to the view that the covenant to renew in the original lease was void for uncertainty.

We conclude, however, that under the writings executed by the parties the plaintiffs in error had no right or option to renew the lease more than the one time.

The Court of Civil Appeals having therefore entered the correct judgment, the writ of error will be refused, regardless of our failure to concur in all that is said in the opinion.

C. S. PICKRELL AND THE ELITE CONFECTIONERY COMPANY OF EL PASO v. MRS.C. N. BUCKLER AND W. T. GRANT COMPANY.

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