I dissent from the conclusion arrived at by Mr. Justice Patterson. It seems to me that there has been a misapprehension as to the facts appearing upon this record, and that, instead of there being no exception to the admission of the testimony in respect to the agreement *212between the plaintiff and the defendants as to the removal of fixtures,, made during the negotiations for the renewal of the lease, it would have been impossible for the plaintiff to have excepted to the introduction of this class of testimony earlier than he did. When the question was asked, Was it also agreed between you that the right to remove those fixtures should continue until you quit the premises? ” it was objected to. It is stated in the prevailing opinion that this objection evidently was to the form of the question. It is apparent that such was not the nature of the objection, because when the court said, “ Let her state what took place,” an exception was taken to that, interrogatory, which certainly was to the substance of the testimony and not to the form of the question.
It is further urged that the right to object to this class of evidence was lost because the counsel for the plaintiff did not object to some portions.of it. I think it is the first time that it has been held that because counsel has allowed one incompetent question to be admitted, he has waived all right to object to that class of questions. It seems to me that it is establishing a new rule governing the trial of causes to hold that such an omission operates as a waiver of all 'rights. At the time that this testimony was offered it appeared that the first lease had been executed; that certain repairs had been made in pursuance of an agreement in respect to repairs,, and that, as the result of .the negotiations in reference to the reletting and repairing of the premises, a lease for an additional term had been entered into which contained the following provision; “The parties of the second part are permitted to use the premises for a private boarding school and may let the premises for the same business, i. e., to be occupied by a family for a private residence. The parties .of the second part are permitted to make such alterations as they deem necessary for the purpose of their business, they agreeing hereby to restore the premises to their present condition.”
The fixtures in question were then in the premises, and it is sought to vary this provision of the lease in regard to the restoration of the premises to their present condition by proving an agreement, made at the time the repairs were originally put in, that they might be removed at any time when the tenants left the premises. If this agreement is not a contradiction of the terms of this lease, subsequently made, then it is difficult to apprehend what is .the meaning *213of a restoration to their present condition, namely, their condition on the 6th of March, 1889.
When Mr. Ely, a brother of the defendants, was examined as a witness, he says he superintended the repairs during all the time they were being made prior to the 1st of December, 1887, which was during the existence of the first lease ; that at the time of the sickness, when it was concluded that the repairs should be made, he had a conversation with Stephens (the plaintiff) in relation to the repairs. He was asked, “ Will you state what that conversation was ? ” This was objected to as immaterial, the objection was overruled and an exception taken. The witness then testified to an agreement between himself and Stephens that if these repairs were made, the tenants should have the right to take out these fixtures whenever they left the premises. And yet it is said that the plaintiff failed to object to the introduction of testimony in regard to this agreement, and thereby lost his right. As has already been stated, it is difficult to see .how be could have raised the objection earlier or why he should have persisted in it more strenuously.
It is further urged that after the court had overruled the objection of counsel, admitting the testimony and holding it to be competent and material, the counsel for the plaintiff acquiesced in this ruling because he did not except to a charge of the court, rendered pertinent by the admission of that testimony, and because he requested the court to charge in respect thereto. He, of course, had to accept the situation with the testimony in, and rely upon his exception to protect his rights. The idea that where testimony is-objected to and admitted, if counsel asks any questions in reference to it or requests the court to instruct the jury in reference to legal propositions which are brought up by its admission, he must be deemed to have acquiesced in it, is certainly novel.
It is true that it is stated in the prevailing opinion that “ these requests would not have prevented the plaintiff insisting upon the validity of an objection to the competency of the testimony with respect to the parol arrangement, had such objection been made in time.” But if. this be so, it is difficult to see how it could be held, as is stated in.a previous part of the opinion, that the want of exception to the charge, and the making of requests to charge, constitute an acquiescence.
*214The result of the rule is that unless counsel make their objection at the very first instant that incompetent and improper testimony is admitted, they forever lose their right to do so. I think it will be difficult to find any authority for such ruling.
It is claimed that the correspondence between the parties showed , that there was some outside agreement in regard to these fixtures. I have searched the correspondence in vain to find any such agreement entered into after the execution of the' lease on the 1st of March, 1889,, by which instrument the rights of the parties were fixed, and the defendants agreed, as a condition of being allowed to make alterations, that they would restore the premises to their present condition. ■ The fixtures were then upon the premises, and by the lease they agreed to leave them there, and yet it. is proposed to prove by parol an agreement made during the existence of the previous lease that they might take out these fixtures whenever they left the premises, and an assent upon the part of the landlord, while negotiating for the renewal of the lease, to their so doing. The lease itself expressly provides that the premises shall be turned over to the landlord in their present condition, reasonable wear and tear excepted, It seems to be conceded by the prevailing opinion that if this evidence had been objected to in time, and had not been waived by the plaintiff allowing some portion of it to come in without objection, although the proper objection was subsquently taken to other portions of it,, it should have been excluded and the provisions of the lease prevail.
It seems to me that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event..
Williams, J., concurred.
Judgment affirmed, with costs.