The opinion
On Motion for Rehearing.
The appellant insists that the plaintiff’s petition fails to allege that Thannisch, plaintiff below, was the owner of the building ■at the time of the alleged conversation. The following quotations from the petition ■show that this contention is without merit:
“That under date of November 6, A. D. 1919, •the plaintiff was the owner of one certain two-•story building on lot 13, block 38, original' town •of Burkburnett, in Wichita county, Tex. * * * That ever since said November 6, 1919, said plaintiff has been and is now the owner of said building, and has paid all rentals due of $60 per month as aforesaid, herein to said W. J. Brown, defendant. * * * That =at the time said defendant J. M. Edwards acquired title to said real estate, and prior thereto, he, the said J. M. Edwards, defendant, well knew personally that said building belonged to this plaintiff, and also personally well knew that plaintiff owned the furniture, etc. * * * Defendants have absolutely no right, title, or interest in and to said building as against this plaintiff, and this plaintiff is the sole owner thereof.”
We think these allegations sufficiently allege ownership. 38 Cyc. 2068-69; Hance v. Burke, 73 Tex. 62 , 11 S. W. 135; Hurst v. Mellinger, 73 Tex. 189 , 11 S. W. 185 ; Beckham v. Burney (Tex. Civ. App.) 42 S. W. 1041 ; Parlin & Orendorff v. Hanson, 21 Tex., Civ. App. 401, 53 S. W. 62 ; Shaw v. Adams, 2 Willson, Civ. Cas. Ct. App. § 177. A transfer was introduced in evidence executed by P. M. McClendon, conveying the building to Thannisch, dated the 6th day of November, 1919. The record fails to disclose that at any time during the trial Edwards questioned the ownership of Than-nisch, but it clearly appears from the statement of facts that his claim to the building was based upon the fact that Thannisch’s title had been forfeited by reason of his failure to pay the rents due upon the.lot to Brown.
The contentions presented in this motion are based principally upon the following paragraph, which appears in part of a written contract between Brown and Thannisch, with reference to the lease of the lot, according to Thannisch, upon which the house was situated:
“In the event that said building is not sold at the expiration of said lease then the first party (Brown) agrees to rent said building to the party of the second part (Thannisch) at a rental of $60 per month from month to month.”
It is provided in the two preceding paragraphs of the instrument that if the lot owned by Brown was sold at the time of the expiration of the lease, that Brown should pay for the building in question, and further that the parties should each select an appraiser, who in turn should select a third appraiser,, who should estimate the physical and earning value of the building. Thannisch and his attorney, Walsh, both testified that prior to and during the trial Edwards had admitted that he. had .notice át the time he purchased the lot from Byown that the building belonged to Thannisch, and the effect of their testimony is to show fur? ther that he was claiming the building by reason of an alleged failure on the part of Thannisch to pay the rent upon the lot. He does not directly contradict this testimony. In the light of this evidence we must conclude that the trial judge construed the paragraph of the writing above quoted to mean that Brown would rent the lot, instead of the building, to Thannisch at the sum of $60 per month. Brown did not testify, and there is not a syllable of testimony in the record tending to show that upon the failure of Thannisch to pay the rent for the lot that the title to the building would vest in Brown. We think the trial court correctly construed the writing in the light of .this testimony. Any other construction would be contrary to the practical construction placed upon it by Edwards and' Thannisch, and would be an absurd construction. - The stipulation with reference to the purchase of the building by Brown and its appraisal, if the lot was sold at the expiration of the lease, is so clear and. definite that the quoted paragraph, if given the construction contended for by appellant, would be contradictory and unreasonable.
The trial judge had the right, fro.m- all the *526 evidence describing the building and the materials in it, to fix the value, and we think the evidence would have supported a judgment for more than $750, as well as a judgment for personal property, which Edwards had wrongfully thrown out of the building.
The motion is overruled.
RANDOLPH, J., not sitting.