I deem it necessary to give my reasons for concurring in the result reached by the majority.
Respondent instituted this action to recover for rent claimed to be due her from appellant. The action was founded upon a written lease of a hotel. The lease, dated June 4, 1942, was for a period extending from June 1, 1942, to May 31, 1945. The rental was one hundred dollars per month to December 1, 1942, and one hundred fifty dollars per month thereafter. Appellant admitted the making of the lease, but in his answer alleged a modification in that, on December 31, 1942, it was agreed that the rental should continue until further notice in the sum of one hundred dollars per month.
At the trial, appellant testified that the lease was modified as alleged in his answer. He claimed that the reason for the reduction of rent was brought about by a lack of business in the hotel, and that an agent for respondent agreed that the rent should be payable in the sum of one hundred dollars per month until the business of the hotel merited a restoration of the payment of one hundred fifty dollars per month.
The agent of respondent and the bookkeeper gave evidence contradicting that given by appellant. Mr. Frank P. Mullins, son and agent for respondent, gave his version of the conversation relative to the rent reduction as follows: *Page 486
"A. Well, Fred came to me and he said, `Business is not very good, and I can't pay this heat bill, it's too heavy; ' and I said to him, — well, we talked back and forth and I told him I thought he had to pay it, but finally he said he just couldn't pay it, it was too heavy, and I said, `All right, Fred, we'll allow you $50 a month until your business picks up.' Q. You mean you won't require him to pay fifty? A. No; and took his hundred dollars and then I said, `When your business picks up, you've got to pay this back rent, according to the lease.' Q. Yes. A. And I asked him for it several times. Q. Let's get this first conversation over with. A. Well, he paid the hundred dollars. Q. And what did he say? A. We accepted the hundred dollars. He said he'd do it. He agreed to do it."
A.F. Gehring, bookkeeper, testified in reference to the conversation between appellant and Mr. Mullins as follows:
"Q. Did he say anything to Mr. Chinn about paying the $150 at some future date? A. Did I? Q. No, — well, either one of you. A. Oh, yes, Mr. Mullins did; he insisted on that, he said it would have to be paid. Q. He said it would have to be paid? A. And, as soon as the times got better, Mr. Mullins insisted he would pay the arrears, if you want to call them such. Q. Anything said when Mr. Chinn would be required to pay that? A. Just when the times were better. Q. Did you have any conversation with Chinn? A. Yes, I did at the end, because I keep the books and I want to know definitely what I'm doing, and I asked Mr. Chinn whether he understood definitely that he would be charged $150 every month and that I would credit him with whatever he paid on rent during that month; he said, `Yes.' Q. He understood you? A. He understood me; I hope he did. Q. Well, did he tell you he did? A. He said `Yes' to me."
Immediately after the meeting, during which the above conversations were had, appellant received a receipt which read, "Rent Jan 1/43 to Feb 1/43." Many other receipts of like nature were given to appellant. The books kept by the bookkeeper showed a charge each month of one hundred fifty dollars and a credit of one hundred dollars.
There can be no doubt but that appellant thought he was securing a reduction in rent and that he made his payments upon that assumption. However, the evidence as disclosed *Page 487 by the record was not sufficient to justify this court in reversing the judgment of the trial court, who saw the witnesses and listened to their testimony.