In this case a rehearing was granted on petition of respondent and the case reargued at the November term at Lewiston.
In respondent's brief on rehearing it is said:
"This court construes 'going to leave the place' as having left the place, whereas the language imputes a future leaving, the time of which it was necessary for the defendant to establish."
It should be remembered, however, that Mr. Ehlert himself testified as follows:
"Well, he told me right there in the grain office, he says,'We are done with the place,' he says: 'we ain't going anyfurther with it, and we have no use for that hay'; and consequently he wanted to trade it for something that was worth a little something." *Page 230
It will be seen that these statements are in the present tense and are the admissions of respondent himself as to what was said in the conversation had between himself and appellant in the grain office in Lewiston on August 4th. Appellant spoke both for the present and the future.
According to the testimony of Mr. Ehlert, Jim Woods, who had lived oil the place as appellant's agent and tenant, moved
"Around, I have an idea, about the last of August or first of September. Yes, he was about, I think the last end of it — He started moving right after harvest — once in a while a load; and the last moving — I know my son lived already in thehouse, and it was pretty close to the middle of September when he moved the last load.
"Q. When did your son move into the house?
"A. Well, it was between the first and the 15th of September."
He also testified that some time between the first and 15th of September he had a talk with Woods and he testified:
"He told me a month before that, he says, 'Don't you stand back. If anybody wants this place we are gone.'
"Q. Who said that?
"A. Jim Woods."
Objection was made to this testimony and after some discussion the court said: "As far as the testimony on both sides shows, the thing was all over. Woods had no further interest at that time."
It is contended that, since this court sustains the finding of the trial court that there was no agreement between the parties for the surrender of the notes, it must follow that the subsequently accruing rentals should be paid. The conclusion is not justified, either under the facts or the law. While appellant was unable to furnish sufficient proof to satisfy the trial court that the parties actually agreed to the cancelation of the subsequently accruing rentals, it does not follow that they are collectible by respondent from appellant, if appellant has successfully shown that the leasehold was actually abandoned by the lessee and accepted by the lessor prior to the date on which the rent would fall due. While the trial court found that no agreement was entered into between plaintiff and defendant, Wilbur E. Woods, with *Page 231 reference to the promissory notes referred to in plaintiff's complaint, he did find, on the other hand, that the premises "were abandoned and surrendered to the plaintiff by the defendant, Wilbur E. Woods, subsequent to September 15th, 1931, and that the said plaintiff took possession of said premises subsequent to September 15th, 1931."
Now, the only error we find in this connection is, that the abandonment took place prior to September 15th instead of subsequent thereto, and the finding should have been to that effect.
It has been suggested by respondent that appellant's answer did not tender the issue of abandonment and surrender of the premises and a consequent cancelation of the subsequently accruing rental by operation of law. It is apparent, however, from the findings, that the trial court and the parties considered that issue as raised, and accordingly findings were made thereon.
It is insisted by counsel for respondent that prior to the transaction of August 4th Ehlert had sold and assigned these notes to the bank and that he was not at that time the owner thereof; and that he again became the owner of the notes by reason of the failure of appellant to pay them and the bank charging them back to respondent's account. Of course he is not an innocent purchaser of the notes and does not so contend. When they were charged back to his account at the bank, he took them subject to the same defense, so far as appellant is concerned, that could have been made against them, had he at all times been the owner and holder of these notes.
We discover no valid reason for receding from the position announced in the original opinion herein. The judgment directed in the original opinion will stand as the decision of the court, and it is so ordered.
Holden and Budge, JJ., concur.
Morgan, C.J., and Givens, J., each adheres to the opinion expressed by him on the original hearing. *Page 232