Bifano Building Corporation, Appellant, v. W. T. Grant Company, Appellee.w. T. Grant Company, Appellant, v. First National Bank in Dallas, Trustee, Appellee.first National Bank in Dallas, Trustee, Appellee, v. W. T. Grant Company, Appellee, 325 F.2d 147 (5th Cir. 1963)

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US Court of Appeals for the Fifth Circuit - 325 F.2d 147 (5th Cir. 1963) November 27, 1963
Rehearing Denied December 27, 1963

Royal H. Brin, Jr., Dallas, Tex., for appellant, Bifano Building Corp., Marcus & Lewis, Strasburger, Price, Kelton, Miller & Martin, Dallas, Tex., of counsel.

Walton Grayson III, Anthony Atwell, Atwell, Grayson & Atwell, Dallas, Tex., for appellee-appellant, First Nat. Bank in Dallas, Trustee.

Jack Pew, Jr., Jackson, Walker, Winstead, Cantwell & Miller, Dallas, Tex., for appellant, W. T. Grant Co.

Before TUTTLE, Chief Judge, and BROWN and GEWIN, Circuit Judges.


It is plain that the correct determination of the appeal and cross-appeal in this case depends upon the proper construction of the provision of the lease which provided,

"It is agreed that Lessee shall make such changes or alterations in the interior of the building and to the walls thereof, as it may see proper and deem necessary * * *"

We conclude that this provision of the lease authorized the Lessee to make all of the changes involved in this litigation. It follows therefore that the judgment of the trial court requiring W. T. Grant Company and its surety, Bifano Building Corporation, to compensate it for changes made during Grant's occupancy was in error.

The judgment is reversed on the appeal of Grant and Bifano, and it is affirmed on the cross-appeal of First National Bank in Dallas, Trustee.