
    LYSIAS LUCILE FIELDS, EXECUTRIX OF THE ESTATE OF WILLIAM R. FIELDS, DECEASED: JAMES G. WEBSTER, ARTHUR A. WEBSTER, AND MARIE CARTER KENYON WEBSTER, EXECUTORS OF THE WILL OF VAN ANDREW WEBSTER, DECEASED; AND JAMES G. WEBSTER AND ARTHUR A. WEBSTER, TRUSTEES UNDER THE WILL OF VAN ANDREW WEBSTER, DECEASED, v. THE UNITED STATES
    [No. C-530.
    Decided April 13, 1925]
    
      On the Proofs
    
    
      Lease; renewal; neyotiations. — Where an original lease in writing' reserves tlie right to quit upon one hundred and eighty days’ notice, and the renewal thereof includes the same provision notwithstanding negotiations prior to said renewal to reduce such period to thirty days, the Government is bound by the terms of the renewal as stated in the written contract, and in the absence of such agreed notice is liable for the rental to the date of expiration.
    
      The Reporter's statement of the case:
    
      Mr. Harry H. Semmes for the plaintiffs. Semmes <&■ Semmes were on the briefs.
    
      Mr. Perey M. Cox, with whom was Mr. Assistant Attorney General William J. Donovan, for the defendant.
    The following are the facts as found by the court:
    I. Early in 1917 the quartermaster at Fort Sam Houston, Texas, suggested to Van Andrew Webster and William R. Fields the construction of warehouses in that vicinity for storing Government supplies. At that time perishable goods were being stored outside and damaged by the elements, and there was need of such Avarehouse facilities. In pursuance of this suggestion and a statement by the local quartermaster that the Avarehouses when erected Avould be leased by the Government, the said Webster and Fields erected certain warehouses, denominated in the record as Avarehouses Nos. 1, 2, 21, and 22. There were other Avarehouses erected, mentioned in the record, namely, Nos. 23, 24, and 25, which are not hrvolved in any way in this suit. In these Avare-houses Webster had an interest of 70 per cent and Fields 30 per cent.
    Some time after the 1st of July, 1921, the said Yan Andrew Webster died, and the parties named as executors in his will qualified as such and are properly named as plaintiffs in this suit. On the 23d of July, 1923, after the filing of this suit, William E. Fields, named as one of the plaintiffs, died leaving a will in which he named his wife, Lysias Lucile Fields, as sole executrix, and she afterwards duly qualified as such and under order of this court was substituted as party plaintiff for William E. Fields.
    II. After the said warehouses had been constructed, on or about the 17th of June, 1918, the United States Government, through its duly authorized representative, entered into and executed contracts of lease with the said Webster and Fields of these Avarehouses Nos. 1, 2, 21, and 22. The leases Avere identical except as to description of the size and location of said Avarehouses. Said leases are attached to the plaintiffs’ petition, marked Exihibit A, B, C, and D, and, respectively, are made part of these findings by reference. These leases were originally for the term beginning July 1, 1918, and ending June 30, 1919, and each of them contained the following paragraphs:
    “ 8. That the lessee reserves the right to quit, relinquish, and give up the said premises at any time within the period for which this lease is made, or may be renewed, by giving to the said lessor or agent one hundred and eighty days’ notice in writing.
    “ 9. That, at the option of the lessee, this lease, with, all its covenants and agreements, may be renewed yearly, as often as the needs of the public service may require, so as to give the lessee continuous possession of the premises, not extending, however, beyond June 30, 1925, but no renewal shall be made to include more than one fiscal year. It being-understood, however, that, nothing contained herein shall pe construed to prevent the lessee from renewing this lease-yearly for the duration of the present war.”
    III. These leases were renewed fo'r the fiscal years July 1, 1919, to June 80, 1920; July 1, 1920, to June 30, 1921; and July 1, 1921, to June 30, 1922. All of these renewals-were in the form of contracts in writing and duly signed, and the rent was paid by defendant in each case except as to the last year, viz, July 1, 1921, to June 30, 1922, which was-only paid up to "November 1, 1921.
    IV. On April 20, 1921, the representative of the Government wrote Webster a letter in regard to renewal of these-leases, of which the following is a copy:
    HEADQUARTERS EIGHTH CORPS AREA,
    OpEIGE OP THE QUARTERMASTER,
    
      Fort Sam Houston, Tex., April 20, 1921.
    
    Mr. VaN A. Webster,
    
      Sam, Antonio, Tex.
    
    Dear Sir: With reference to this office’s letter of March 10, 1921, advising you that the following-described property would be surrendered to you on June 30, 1921, and leases would not be renewed beginning July 1, 1921, for the fiscal year 1922, viz:
    Warehouse No. 1. — Between Lamar, Burleson, and Walnut Streets, on G. H. & S. A. tracks and fronting on Lamar Street.
    Warehouse No. 2. — On Hays, Lamar, and Walnut Streets,, and G. H. & S. A. By. tracks.
    Warehouse No. 21. — Mesquite and Crosby Streets and Brooks Alley, on G. H. & S. A. By. tracks.
    Warehouse No. 22. — Corner N. Hackberry, Duval, and W. Mesquite Streets.
    You are now advised that the Government will exercise its option for renewing leases on these buildings beginning July 1, 1921, for the fiscal year 1922, and that renewal of leases will be executed and forwarded to you for signature in due time.
    Information is requested whether it will be satisfactory to you to provide in renewal of leases that' the Government may give thirty days’ notice in writing to you of its intention to quit, relinquish, and give, up said premises at any time within the period for which the lease was made or renewed instead of one hundred eighty days (180), as provided in paragraph eight of original lease.
    (Your prompt reply to this communication is requested, so that steps may be taken to renew leases.
    Yours truly,
    By direction:
    Dorris A. HaNes,
    
      Assistcmt Quartermaster.
    
    On the 25th of April the said Webster, on behalf of the plaintiffs, replied to this letter as follows :
    SaN ANTONIO, Tex., April @5, 19® 1.
    
    Dorris A. Hanes,
    
      Assistant Quartermaster,
    
      Headquarters Eighth Corps Area,
    
      Fort Sam Houston, Tex.
    
    Dear Sir : In reply to your letters dated April 20, 1921.
    I am sure you will not lose sight of the conditions which prevailed at the time these warehouses were built. Unsuccessful efforts were made by the Government over a considerable period of time to have houses built necessary for their requirements in that emergency; and although contracts were made for the construction, none of these more costly types of buildings were built, due to the uncertain time of lease.
    Frankly, it is to my interests that the Government retain these houses. As you lmow, I am in no way engaged in a warehouse business. They represent an investment of several hundred thousand dollars made expressly for the Government. Business conditions are very much disturbed, and when the Government releases these houses I will face the task of readjustment to convert them to commercial uses that will take much time and consideration. All my business resources will be concentrated to diverting the houses to the commercial requirements of business concerns, and I would find the 180 days’ notice almost indispensable.
    Before the construction of these houses was undertaken the Government voluntarily agreed to give 180 days’ notice.
    Under the circumstances I would respectfully request that you continue the 180-day notice in the new leases for the tile and concrete warehouses, viz:
    Warehouse No. 21. Mesquite and Crosby Streets and Brooks Alley on G. H. & S. A. tracks.
    Warehouse No. 22. Corner N. Hackberry, Duval, and W. Mesquite Streets.. „
    Warehouse No. 25. Qn Sequin Street and New Braunfels Avenue.
    
      Warehouse No. 23. On Sequin Street and New Braunfels Avenue.
    Warehouse No. 24. On Sequin Street and New Braunfels Avenue.
    Yours very truly,
    (Signed) VAN A. Webster.
    On the 20th of May, 1921, the representative of the defendant sent to the plaintiff, Webster, a notic? which was received on the 21st of May and which is as follows:
    To: Van A. Webster,.
    
      San Antonio, Texas.
    
    
      Sip : In accordance with Article 9 of the following lease:
    Lessor: Yan A. Webster.
    Lessee: United States of America.
    Dated: 6/17/18.
    Effective: 7/1/18.
    Expires: 6/30/19.
    Premises: Briclc and tile building, 200 feet 7 inches x 400 feet 9 inches, located at corner of N. Hackberry, Duval, and N. Mesquite Sts., San Antonio, Tex.
    You are hereby notified that the United States of America does hereby exercise the privilege of renewal contained in said lease, and does hereby renew same for the Government fiscal year 1922, namely, July 1, 1921, to June 30, 1922.
    Acknowledge receipt of this notice.
    DoRRis A. HaNes,
    Gapt., Q. M. G.,
    
    
      Scm Antonio, Tex.
    
    A similar notice was served as to each of the warehouses.
    Y. On the 20th day of May, 1921, notice was served as to each of said warehouses of the Government’s intention to renew the said leases, which notice was as follows:
    Lessor: Van A. Webster, San Antonio, Tex.
    Contracting Officer: Doris A.' Hanes, Captain, Quartermaster Corps.
    Premises: % of Bldg., bet. Lamar, Burleson, and Walnut Sts., on G. H. & S. A. tracks and fronting on Lamar St.. San Antonio, Texas.
    Occupied by: Quartermaster Corps.
    As: Warehouse.
    Rental per Month: $360.00.
    Appropriation: I. & PS. & SF.
    Date of Renewal: May 20, 1921.
    Date Effective: July 1, 1921.
    Date Expires: June 30, 1922.
    
      The authority for this lease is: 1st Ind. O. QM. G., Wash., dated May 12, 1921.
    These articles of agreement, entered into this 20th day of May, 1921, between Dorris A. Hanes, captain, Quartermaster Corps, U. S. Army, for and in behalf of the United States of America (hereinafter designated as lessee), of the first part, and Van A. Webster, of San Antonio, in the county of Bexar and State of Texas (hereinafter designated as lessor), of the second part, witnesseth, that:
    Whereas by certain articles of agreement, dated 17th day of June, 1918, the lessor did lease, demise, and let unto the United States of America certain premises situate in the city of San Antonio, county of Bexar, and State of Texas, to wit:
    The ironclad building with cement floors, 400 feet by 60 feet, between Lamar, Burleson, and Walnut Streets, on G. H. & S. A. tracks and fronting on Lamar Street, for a term beginning July 1st, 1918, and expiring June 30th, 1919. which said agreement in paragraph 9 thereof provided that at the option of the lessee said lease, with all its covenants and agreements, might be renewed yearly as often as the needs of the public service might require, not extending, however, beyond June 30, 1925; and
    Whereas the needs of the public service require that said lease be renewed, and premises retained, with the exception of one-fourth (1/4) of same which was released to lessor under date of April 30,1921, as evidenced by Notice of Cancellation, dated April 30, 1921, and Belease dated June 17. 1921.
    Therefore said parties do hereby mutually covenant and agree to renew and extend said lease with all its covenants and agreements, and by these presents do hereby renew and extend the same for a further term beginning on the first day of July, 1921, and terminating on the 30th day of June. 1922, upon the same terms, and with the same covenants and conditions as set forth in said lease hereby renewed, so far as applicable, the rent reserved hereunder being payable as follows:
    Three hundred and sixty ($360.00) dollars monthly.
    Changes before execution:
    Line 5 of preamble deleted word “ and,” 2nd line from bottom of page 1, deleted and words beginning with “ not ” and ending with “ and ”. inserted; words beginning with “ date ” and ending with “ the,” 3rd line, page 2, deleted. '
    In witness whereof the parties aforesaid have hereunto placed their hands the date first hereinbefore written. The officer of the United States whose name is signed below certifies tliat the rate stated in this lease is not in excess of the commercial rental value of the premises named and that said rate is the amount to be actually paid to the lessor for his own use and that there are no public buildings, quarters, or grounds available for use as specified in this lease, and that the rate stipulated in this lease is a fair rental value of reasonable good premises suitable for the purposes stated herein in the locality where situated.
    Witnesses:
    C. I. BayNE, as to DoeRts A. HaNes,
    
      Oapt., Q. M. 0.
    
    D. D. Maeley, ■ as to VaN A. WebsteR.
    This is to certify that above is a true and correct copy of the original.
    D. I). Maeley,
    
      Notary Public,
    
    
      In and for Bexar Oownty, Tex.
    
    Dated at San Antonio, Texas, this 16th day of November, A. D. 1922.
    VI. On the 20th of May, 1921, the same day on which the notices of renewal were given, there were executed between the parties formal contracts of renewal for the year beginning July 1, 1921, and ending June 30, 1922, which said contracts are attached to the plaintiffs’ petition, marked respectively A-8, B-8, C-8, and D-8, and made part hereof by reference. These renewals in terms are all the same as to warehouses Nos. 1, 2, 21, and 22, except as to location and description of the property. The defendant continued to use the warehouses until some time prior to October 1, 1921, when it removed all of its goods and abandoned the property.
    VII. After the property was abandoned plaintiffs took possession on the 8th of October of one of these warehouses, being No. 22, and leased it from October 8, 1921, until June 30, 1922, receiving in rental therefor $3,290.32. They also leased a part of warehouse No. 21 during the month of December, 1921, for which they received $150; and part of warehouse No. 2 from January 2, 1921, to June 30, 1922, receiving as rent therefor $970.82.
    VIII. On the 31st of October, 1921, the representative of the defendant presented to the plaintiffs formal agreements for release of the defendant from the contracts of lease on and after October 31,1921. These formal releases the plaintiffs declined to execute.
    IX. After the premises were abandoned by the Government the plaintiffs rented for different periods to third parties (see Finding VII) three of these warehouses, and received therefor certain sums for which the defendant should be given credit. The amounts due on these leases, subject to these credits, are correctly shown by plaintiffs’ Exhibits A-13, B-13, C-13, and D-13 attached to plaintiffs’ petition, which are made part hereof by reference. The balance due the plaintiffs is $25,398.30, the sum claimed in the petition.
    The court decided that plaintiffs were entitled to recover.
   GRAham, Judge,

delivered the opinion of the court:

The plaintiffs in this case are the executrix of Fields and the executors of Van Andrew Webster, named in the petition. In the early part of 1917 the said Webster and Fields began constructing warehouses in the vicinity of San Antonio, Tex,, at the suggestion of the Government’s representatives, with a view to leasing them to the Government. After the erection of the buildings, on or about June 17, 1918, the defendant entered into contracts with Van Andrew Webster, as a representative of himself and Fields, for the lease of each of the houses at a certain sum per year, covering the period from July 1, 1918, to June 30, 1919, on the basis of 2 cents per square foot of building space, the rental to be paid monthly at the end of each calendar month, with an option to the defendant of renewal of the lease from year to year until June 30, 1925, no renewal to.be for more than one fiscal year. Each of the leases provided as follows:

“That the lessee reserves the right to quit, relinquish, or give up said premises at any time within the period for which this lease is made, or may be renewed, by giving to the said lessor or agent one hundred and eighty days' notice in writing.”

These leases were renewed for each succeeding year, including the year beginning July 1,1921, and ending June 30, 1922. This suit is brought to recover the rental claimed to be due on the renewal contract for the year last mentioned, which contract was written and renewed the original lease with all of its covenants and conditions for the time named, viz, July 1, 1921, to June 30, 1922. Some time prior to the 1st of October the Government removed all of its property from the premises and abandoned the buildings.

On April 20, 1921, the defendant gave notice of the exercise of its option to renew the lease for the year beginning July 1, 1921, and on the 30th of the same month gave notice that it would “ exercise its rights reserved in said lease and will quit, relinquish, and give up said premises on October 21, 1921.” Receipt of the last notice was acknowledged on May 3, 1921, by Van Andrew Webster, representing the plaintiffs, and, of course, was only effective as of the date of service. Thereafter, on May 20, the Government again notified plaintiffs that it would exercise its privilege of renewing said lease for the ensuing year from July 1, 1921, to June 30, 1922, and on that date, in accordance with the last notice, a formal agreement of renewal was entered into.

The defendant’s attorney has urged here that the notice of the termination of the leases was intended to apply to the subsequent renewal of the leases and should be read into the same. It would be a sufficent answer to say that whatever the intent was, the renewals negatived such purpose. Under the renewal contracts the Government was required to give 180 days’ notice. The earliest date, therefore, from July 1, 1921, assuming notice was given on that date for terminating the leases, would be December 31, 1921. Even if these notices were given the effect requested by the defendant, they were several months short of the time required under the leases as renewed, and were notices of the termination of leases which were not in existence at the time as they had not been renewed and were not renewed until some time after the notices. The lease and the renewal speak for themselves. Had the Government desired any such modification as is contended for here, it had an opportunity to provide for it at the time of the renewals. The notice of renewal and the renewal agreement itself were prepared by the Government’s representative. There is no proof of any mutual misunderstanding or mistake. There is no proof that the plaintiffs understood that the Government reserved the right to terminate these leases as renewed without the required notice of 180 days, or that the said notice of April 30 was understood by the plaintiffs to apply to the renewal. The Government paid the rent up to and including the 31st of October, 1921. There is no ambiguity .about the contract between the parties and it has not been urged that there is. The previous negotiations between the parties, under a well-understood principle of law, were merged in the written contract of renewal, which incorporated the terms and conditions of the original lease. Under the original lease the lessee was required to give certain notice in order to be relieved! of its obligation under the lease of payment of rent for a year. This notice was 180 days, and it is admitted that such notice was not given after the execution of the contracts of renewal.

The court can not be controlled by outside considerations and happenings prior to the execution of the written con-contracts which expressed the final purpose and agreement of the parties. Before the execution of the contracts was the time for the defendant to incorporate in them such provisions as it desired to avail itself of in regard to terminating the contracts. As stated, the representative of the defendant prepared the contracts. For this reason any appeal to the conscience of the court to reform them comes with diminished grace.

Judgment should be entered for the plaintiffs in the sum found by the facts to be due them, being the amount claimed in the petition, and it is so ordered.

Hay, Judge; Dowkey, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  