(dissenting).
The judgment from which this appeal is prosecuted makes no mention of liability of appellant or the estate of John J. Simmons for any loss that might be sustained 'by Clampitt Paper Company because of lack of authority of Mr. Simmons to make the lease contract involved in this suit. Tlhe judgment of the court below was entered in favor of the Paper Company, determining and declaring that appellant is legally bound under the terms and conditions of the original lease, under declaration that Mrs. Simmons, subsequent to the death of her husband, by her acts and conduct, and letter quoted in the record, ratified and confirmed the otherwise nonenforceable lease contract.
The Clampitt Paper Company instituted this suit under the Uniform Declaratory Judgments Act to determine and declare merely the legal status of Mrs. Simmons in reference to the lease contract, contending that she had, after the death of her husband, adopted and ratified all of its terms and conditions; and, pending this action, she be enjoined from asserting any claim against the plaintiff for possession of said premises and from instituting any action at law, or suit in equity, against the plaintiff for the recovery of said premises, and for general relief and costs of suit. There is not a line in the pleadings or in the judgment of the court below, nor (it is pertinent to say) in the majority’s original opinion, in reference to the liability of the defendant or the estate of John J. Simmons, and there is not a scintilla of evidence to support such declaration. And there is no •contention in this appeal that the Paper Company sustained any loss or might sustain loss by being dispossessed of the lease because of Mr. Simmons’ lack of authority to bind his wife. Such declaration by the majority that the estate of John J. Simmons is liable for any such loss is manifestly beside the record; thus, by its inclusion in the opinion on rehearing, reveals weakness in the conclusion of the majority that by Mrs. Simmons’ acts and conduct she ratified the otherwise illegal lease contract involved in this suit; and the holding of the majority that the existing lease is a valid and subsisting lease to the premises. If the lease executed by Mr. Simmons is binding on Mrs. Simmons, as contended in pleadings of the plaintiff and sustained by the majority, it therefore is difficult to understand the declaration that the estate of John J. Simmons is liable for loss of the lease. I content myself on the record, adhering to my original dissent.