DISSENTING OPINION ON PETITION FOR REHEARING. I think appellants' petition for rehearing should be granted for the following reasons:
1. This court in its opinion holds that there was sufficient consideration, "between appellant and appellee," for the execution of appellee's Exhibit Four, which was the written waiver of the provisions in the lease providing forfeiture of buildings and fences erected upon the leased premises. Having read and considered all the evidence, I found none which in my opinion proves or tends to prove such consideration as between appellee and appellant Alfareta B. Pierce; on the contrary it is my opinion that it is shown by uncontradicted evidence that there was no consideration for said waiver, as between appellee and appellant Alfareta B. Pierce.
2. The trial court made a special finding of facts in which it found that: *Page 244
"some time in the month of May, 1930, the lessees made application to the plaintiff (appellee) to purchase and have delivered, all necessary material to be used in the erection of a grand stand and amphitheater and to enclose by fence the half mile tract located on said described premises and at that time the lessees had no sufficient funds with which to pay for said materials and the plaintiff by and through its officers and managers informed the said John Pierce, agent for Alfareta B. Pierce and Paul R. Martin, that the plaintiff would not furnish such material and extend credit unless the said Alfareta B. Pierce and Paul R. Martin would waive their right to retain and keep said structures and buildings in the event the lessees failed or neglected to pay the rental.
"That the said John Pierce as such agent assured the plaintiff that such waiver would be made and that in consideration of such promise which was to be set out in writing and that later the said plaintiff delivered to the lessees on said premises for the purpose of building and erecting a grand stand, amphitheater and other structures in the way of fencing, all of the material necessary to be used in such work. (Our italics.)
Appellants have challenged the sufficiency of the evidence to sustain said special finding. I have found no evidence which shows or tends to show that appellant John Pierce acted as agent for appellant Alfareta Pierce in the matters referred to in said finding. It is my opinion that it is shown by uncontradicted evidence that he did not act as her agent in said matters.
Therefore I dissent from the order of this court denying appellants' petition for rehearing. *Page 245