This is a certified question from the *Page 84 Court of Civil Appeals of the Fifth Supreme Judicial District. The statement and questions are as follows:
"The judgment of the court below, in the above entitled cause, was affirmed on a former day by the present term of this court, but upon further consideration of the case on appellant's motion for a rehearing, we deem it advisable to present to the Supreme Court of the state of Texas, for adjudication, the following issues of law arising upon the appeal.
"STATEMENT: "On the 9th day of June, 1902, appellee, by written contract, leased to appellant, who was engaged in the manufacture of ice and sale of ice and beer and intoxicating liquors, a certain building in Waxahachie, Ellis County, Texas, for the term of three years, to begin June 1, 1903. Appellant agreed to pay as rent for the use of said building, the sum of $2,100 in quarterly installments of $175 each. Said contract is as follows:
"`The State of Texas, County of Ellis.
"`This lease, made on the ____ day of __________, 189__, between R.A. Keenan, of the first part, and H. Hamilton, Prest. Houston Ice and Brewing Co., of the second part, witnesseth: That said party of the first part, in consideration of the rents and covenants hereinafter contained, and by said party of the second part and their assigns to be paid and performed, do hereby grant, demise and lease to the said party of the second part, their executors, administrators and assigns, the following described premises: Brick building in the rear of Waxahachie National Bank on the east side of Franklin Street, Waxahachie, Texas.
"`The present lease to Jake Cohen in building is assigned to Houston Ice and Brewing Company, unexpired term of which is fourteen months from April 1, 1902.
"`To have and to hold the same, with the appurtenances, unto the said party of the second part, their executors, administrators and assigns from June 1, 1903, for and during the full term of three years next ensuing, and fully to be completed and ended by June 1, 1906, they, the said lessees holding and paying therefor during said term the sum of twenty-one hundred dollars, to be paid in the following manner, to wit: One hundred and seventy-five dollars quarterly.
"`Provided, however, that if said rent, or any part thereof, shall remain unpaid for ten days after it shall become due, and without demand made therefor; or if said lessees shall assign this lease or underlet said leased premises or any part thereof, or if the said lessees interest shall be sold under execution or other legal process without the written consent of said lessor, his heirs or assigns, first had, then and in that event and at the option of the owner of the premises described above, the whole amount remaining unpaid under this lease shall at once become due and payable, and it shall be lawful for said lessor, or his agents, heirs or assigns without notice or demand, reenter said premises and have the same again, repossess and enjoy, as in his first and former estate, and thereupon this lease and everything therein contained on the said lessor's behalf to be done and performed, shall cease, determine and be utterly void. *Page 85
"`And said lessees for their executors, administrators and assigns covenant and agree with the said lessor, his heirs and assigns as follows: That is to say, that said lessees will pay said rents in the manner aforesaid, that they will not do or suffer any waste therein, that they will not assign this lease or underlet said premises or any part thereof, without the written consent of said lessor, or his agents, and at the end of said term, they will deliver up said premises in as good order and condition as they are now, or may be put by said lessor, reasonable use and ordinary wear and tear thereof excepted, and they will not use any gasoline or coal oil stoves in said leased premises, and further for the said rents to be paid by said lessees and assigns, a lien is hereby reserved upon the property hereby leased, the interest of said lessee and assigns in the same, and the property of said lessee upon said premises, in favor of said lessor, his heirs and assigns, prior and preferable to any and all other liens thereupon whatsoever. It is agreed and understood that this contract provides for ten percent of amount involved as attorney's fees in case the same is collected by suit, and lessee agrees that same shall be entered as part of judgment.
"`The said lessees herein waive all notices which by law are required to be served upon . . . in the event of any suit of ejectment or forcible detainer be brought. All repairs upon said property herein leased during the time that the same may be leased, shall be at the expense of said lessees, for damages done by said lessee, to any part of said leased premises, and no alteration shall be made to said premises without the consent of said lessor or his agents, and said lessor for his heirs, executors, administrators and assigns covenant and agree with said lessee their executors and administrators, that said lessee paying the rents and observing and keeping the covenants of this lease on their part to be kept, shall lawfully, peaceably and quietly hold, occupy and enjoy said premises during said term, without any let, hindrance, ejection or molestation by said lessor or his heirs, agents or any person or persons lawfully claiming under this contract.
"`And it is agreed that said premises shall be used for the saloon business.
"`In witness whereof, said parties have hereto set their hands on the day and year first above written.
Witness. R A. Keenan. Houston Ice and Brewing Co.'
"At the time of the making of the foregoing lease appellant took an assignment from appellee of his rights as landlord of an unexpired lease, which had been granted to one Jake Cohen, the unexpired term of which was, at that time, fourteen months from April 1, 1902. After the execution and delivery of the lease and before the term thereof began an election was ordered by the Commissioner's Court of Ellis County, under what is known as our "local option statute," and held throughout the county, to determine whether or not the sale of intoxicating liquors should be prohibited in that county. The election resulted in favor of prohibition and local option became effective in said county on October 11, 1902, and has continuously remained in force since that date. Appellant claimed that the stipulation in the lease, *Page 86 that the demised premises should be used for the saloon business, constituted an express covenant that said premises should be used for no other purpose; that such use became illegal by the adoption of local option in Ellis County, and by reason thereof it was absolved from liability for the agreed rent. Taking this view of the matter appellant notified appellee that it could not carry out the agreement, and refused to occupy the leased building.
"Appellee insisted on the validity of the lease contract, at all times recognized defendant's rights thereunder, and tendered the building to appellant at the beginning of the lease term and demanded payment of the rent in accordance with the terms of the contract. Appellant refused to receive the building or to pay the rent and this suit was brought to recover the first installment thereof. A jury being waived the trial court filed conclusions of fact and found, among other things, in effect, that the lease to Jake Cohen of the building in question, was in writing, was dated June 1, 1900, and was for a term of three years, beginning on that date; that said Cohen's lease provided, "that said premises shall be used for mercantile and no other purpose," that it further provided as follows: "It is also agreed in the event of prohibition being carried in this town Jake Cohen is permitted to cancel this lease." These conclusions of fact found by the court are not attacked. Judgment having been rendered for appellee, appellant appeals.
"QUESTION 1. "Did the stipulation in the lease contract, `that said premises shall be used for the saloon business' constitute a covenant on the part of appellant that it would use the land and premises for that particular purpose and operate as an implied restriction against other uses?
"QUESTION 2. "Was the lease contract rendered illegal, and appellant absolved from liability for the rents therein agreed to be paid by reason of the adoption of local option in Ellis County subsequent to the execution of said contract, prohibiting the sale of intoxicating liquors in said county?"
To both questions we answer: assuming that the stipulation referred to in the first question "constitutes a covenant" nevertheless the contract of lease was not "rendered illegal," nor was appellant absolved from liability for rents "by the adoption of local option in Ellis County." The opinion of the Court of Civil Appeals clearly states reasons which are satisfactory to this court and that opinion is adopted and directed to be published with these answers. *Page 87