Not being able to agree with my associates, I here file the following dissenting opinion:
Appellant brought this suit against George, Paulj and Gus Costas and Frank Keton, alleging that the three first named parties leased from appellant a certain piece of property in Waco for a period of five years, beginning September 1, 1915, at a monthly rental of $225 for the first two years and $250 per month for the remaining three 'years, and that appellee Frank Keton agreed with appel*827lant, as surety for said lessees, to be responsible for tbe payment of tbe montbly installments of rent in advance as tbe same became due for tbe first year of said lease. Appellant alleged further that tbe installments of rent that became due on tbe 1st of April, May, June, July, and August, 1916, being tbe last five months of tbe first year of said lease, bad not been paid, except $109.49 received from the trustee in bankruptcy in tbe bankruptcy proceedings of tbe said lessees. Gus Costas, being a nonresident of tbe state, was dismissed from the suit. George and Paul Cos-tas pleaded their discharge in bankruptcy. Appellee Keton pleaded several defenses, to which reference will hereafter be made.
Among other findings not necessary to a disposition of this ease, tbe jury found:
(1) That between September 1, 1915, and August 31,1916, tbe plaintiff, Silbert, did take over tbe control and disposition of tbe premises covered by tbe lease involved herein.
(2) That at tbe time plaintiff, Silbert, took over tbe control and disposition of tbe premises covered by tbe lease involved herein, there was no rent due.
Tbe court entered judgment for appellee Keton and also for George and Paul Costas on their plea of discharge in bankruptcy. Appellant has duly appealed and presents the record here for review. This is tbe second appeal in this case, the .former appeal being reported in (Tex. Civ. App.) 250 S. W. 316.
I do not find it necessary to discuss all the questions raised by appellant, nor to consider bis assignments in tbe order presented. Appellant in no way'questions tbe sufficiency of tbe evidence to support the first finding of tbe jury above, but does challenge tbe sufficiency of tbe evidence to support tbe second finding; and this question, as I view tbe case, is tbe only one necessary to be considered in determining this appeal. Appellant sued for rent for tbe last five months of tbe first year of tbe lease, to wit, for April, May, June, July, and August, at $225 per month. Tbe record shows conclusively that about May 1, 1916, tbe lessees, Costas Bros., were adjudged bankrupts, and that on or about said date a trustee was appointed, who took charge of tbe property of tbe bankrupts situated in tbe building in question, and said trustee, as such, with said property occupied said building until June 7th or 8th, at which time tbe property, consisting of restaurant fixtures, etc., were sold to Bill Perdichi, who at once took charge of said restaurant and continued to occupy said building until September 1,1916, tbe end of tbe first year of said lease. The evidence is ample to support tbe finding* of the jury that appellant did take over tbe control and disposition of tbe premises during tbe first year of said lease, and tbe time be did so, if be did, is established by the evidence without conflict as June 7 or 8, 1916. Appellant having taken over tbe control and disposition of tbe lease on June 7, 1916, and leased same to Bill Perdichi for tbe remainder of tbe first year, to September 1, 1916, it necessarily follows appellee Keton was not liable for any rent after June 7, 1916, tbe date appellant leased same to 'Bill Perdichi. Was any rent due appellant by appellee Keton on June 7, 1916, at the time be took over tbe property and rented it to Perdichi? In passing upon this question, it is thought, we should remember that appellant was tbe only witness who testified that the April rent’ had not been paid, and he seems to have relied solely upon bis memory, for be produced no books or written evidence of any kind. We should also bear in mind that appellant was the plaintiff seeking a recovery, and was financially interested, and that tbe jury saw and observed bis manner while upon tbe stand testifying and was in a position far better than this court to pass upon bis credibility. Tbe jury bad tbe right to reject bis evidence, even though not contradicted. On tbe last trial tbe evidence on tbe point here involved was practically tbe same as on tbe former trial, and on the appeal therefrom tbe appellate court held, correctly, I think, such issue was one for tbe jury. Keton v. Silbert (Tex. Civ. App.) 250 S. W. 316, and cases there cited. Costas Bros., for reasons apparent from tbe record, were not interested -in tbe result of this suit, and were not accessible and did not testify. Appellee Keton being liable only as a surety for Costas Bros., and they having promptly paid tbe rent, as far as tbe record discloses, up to tbe time they were adjudged bankrupts, be bad' no occasion for keeping a record or having knowledge of the condition of said rent account.
There are circumstances tending to show that tbe rent was paid for April, 1916. Tbe lease contract began September 1, 1915, and was payable in montbly installments of $225 per month in advance, the first installment being due September 1, 1915, and a like installment in advance on the 1st day of each month thereafter. The lease further provided if any installment was not paid in .advance by tbe 5th of any month, the lessor had tbe right to declare it all due, repossess tbe property, etc. As far as the record shows, Costas Bros, paid said installments promptly in advance on tbe 1st of each month from September 1, 1915, to April 1, 1916. Tbe lessees were not adjudged bankrupts until May 1, 1916. There was no claim made to Keton, tbe surety, that tbe April, 1916, rent was not paid until long after Costas Bros, were discharged in bankruptcy, and-some or all of said lessees bad left the state. If tbe April rent bad not been paid by the 5th of said month, it is reasonable to suppose that appellant would have taken some steps to collect same, and it is unreasonable to suppose that appellant would have let tbe entire month of *828April, May, and a part of June pass, until Costas Bros, were discharged in bankruptcy and gone, before making any claim to tbe surety Keton that tbe April, 1916, rent was not paid, when be bad tbe right and could have presented bis bill for tbe $225 April rent to tbe surety Keton on April ’5tb, or any day thereafter, and collected same. There are other circumstances that tend to support tbe finding of the jury. There being evidence to support tbe finding of tbe jury that at tbe time appellant took over tbe control and disposition of the premises there was no rent due him by appellee Keton, this court, it is thought, should not disturb such finding. Cartwright et al. v. Canode, 106 Tex. 502, 171 S. W. 696, and cases cited.
Tbe writer is of opinion tbe judgment of tbe trial court should be affirmed.