It is shown by undisputed evidence that prior to August 4, 1931, the date on which Ehlert, now deceased, and appellant, Wilbur E. Woods, agreed to terminate the lease, the notes, which were negotiable, given by Woods and wife to evidence the indebtedness for pasture, had been sold to The Lewiston National Bank and that Ehlert was not, at the time of the agreement, the owner or holder of them but repurchased them from the bank thereafter and before the commencement of the action.
There was no agreement that the notes were to be canceled and, at the time of the termination of the lease, appellant, Wilbur E. Woods, owed the bank the indebtedness evidenced by them and he owed Ehlert nothing for pasture. There was no rent due to the landlord from the tenant to be extinguished by operation of law by the cancelation of the lease.
It was not necessary that plaintiff tender an issue as to the sale of the notes to the bank and repurchase of them by him. He could and did state a cause of action on them without doing so.
As an affirmative defense appellants alleged in their answer with respect to the agreement to terminate the lease: *Page 229
"That the defendant W.E. Woods thereupon offered to surrender possession of said premises to William Ehlert together with the unmatured spring wheat and barley and summer fallowed land, in satisfaction of any and all indebtedness due from the defendant W.E. Woods to William Ehlert. That the said William Ehlert thereupon accepted said offer and entered into the possession of said premises."
Replication has been abolished in Idaho (I. C. A., sec.5-603), and new matter pleaded in the answer in avoidance or as an affirmative defense or counterclaim is deemed denied. (Sec.5-812.)
In view of the fact, conclusively established, that Woods did not owe Ehlert for pasture at the time of the agreement to terminate the lease, but owed the bank the indebtedness evidenced by the notes to recover which this action was brought, I dissent from that part of the opinion which reverses the portion of the judgment allowing recovery on the note given for the 1931 rental and am in favor of affirming the entire judgment appealed from.
ON REHEARING. (January 15, 1937.)