CONCURRING OPINION OF
QUARLES, J.I concur in the conclusion that the judgment must be reversed on the ground stated in the opinion of the court. However, I am of the opinion that the complainant’s bill should be dismissed for want of equity, in that it appears in the record and by evidence offered on behalf of the respondent, and refused by the court, that the covenant sought to be specifically performed was waived by the complainant and abandoned by mutual consent of both parties. Failure to perform the covenant, if excused by both parties, will defeat a suit for specific performance. 36 Cyc. 699, 700, and authorities cited in notes. “The right to enforce an agreement in equity is lost when the party seeking performance has consented to a rescission of the contract.” 26 Am. & Eng. Ency. L. 134, and authorities cited in notes; When the contract has been abandoned by the party seeking-specific performance, or by both parties, specific performance will not be decreed. 26 Am. & Eng. Ency. L. 135, and authorities cited in notes.
The history of the abandonment or waiver suggested, contained in the record, is as follows: June 1, 1914, at the expiration of the option to release contained in the old lease, respondent’s husband, J. Ahulii, acting for respondent, wrote to the complainant informing him, in substance, that the lease had expired, and offering to give him a new lease at the increased rental of $300 per year, the complain*314ant to bear the expenses of the papers for the new lease and asking the complainant to come at once if this was agreeable as other parties were wanting the land at a rental of $300 per year. The letter closes with this language: “I wrote to you before but it was returned, and I sent it again to John Miguel, the same letter, and to this day you have made no reply, I will wait for you for one week only, and if I get no answer, then the land will be given to one of those who asked me for the land.” The complainant testifies that he received the said letter on the 6th day óf June; he also testifies that he asked one Antone Fernandez to write to J. Ahulii, husband of respondent, and that Fernandez did so; he further testifies that he was present when the letter was written, had an interpreter with him and had the letter interpreted to him. This letter was dated June 8, 1914. In this letter, which was offered by the respondent in evidence but refused by the court on the ground that said Fernandez was not shown to be the agent of complainant, Fernandez informs Ahulii that complainant is agreeable to pay a rental of $300 and is ready to send $150 next week for six months’ rent. This letter should have been received in evidence as it was unquestionably written by the agent of Yip Lan. The evidence shows further that Antone Fernandez, also known by the name of Akoni, on the 15th of June, 1914, went with Yip Lan and another Chinaman named Tam Choy, to the respondent. Yip Lan and Tam Choy testify that Yip Lan on this occasion agreed to pay rental of $300 per year, and that Ahulii said, “You are too late.” The week in which the respondent had voluntarily extended the privilege to Yip Lan to receive another lease at the increased rental of $300 had expired one week before the visit of Yip Lan, Fernandez and Tam Choy to the respondent. On this occasion Yip Lan informed Ahulii that he had sent to him post-office orders for $132.50, Ahulii claiming that he had not received them. On the next day it appears that Ahulii *315went to the post-office and received these post-office orders. Pour days later, on the 19th, the respondent leased the premises in dispute to Pat On at a rental of $400 per year, and four days afterwards, June 22, Ahulii sent to Fernandez, agent for Yip Lan, the writing in which Fat On agreed that Yip Lan could remain on the premises until the first day of January, 1915, which is set forth in the opinion of the court, and also the receipt given by Fat On to Ahulii for $200 for six months’ rent from June 1, 1914, to January 1, 1915, set forth in the opinion of the court. In the letter transmitting this agreement and receipt from Fat On to Fernandez Ahulii used this language: “The money from Yip Lan I have received that in the form of two money orders of the value of $132.50, and this is what remains: if he consents to return what I paid” (to Fat On) “then you are to give him this receipt, and if not, you are to return that receipt, and I will return these money orders. Only yesterday did I receive this letter from Yip Lan. If the Chinaman Yip Lan consents to pay back my money. The amount of $67.50 is the balance of what he is to pay me.” This letter was received in evidence and shows, to my mind conclusively, that the respondent never received the $132.50 as rent from Yip Lan from June 1, 1914, to December 31, 1914, on the old lease.
I do not think that Ahulii acted properly in regard to making an arrangement for Yip Lan with Fat On, but he evidently did it through kindness of heart and to prevent Yip Lan from losing his growing crops and to give him the opportunity to mature and harvest them. Yip Lan should have returned the Fat On receipt unless he claimed an advantage under it. Under the circumstances I regard it as clear, from the evidence in this case, that Yip Lan abandoned the covenant in the lease for renewal on the terms stated in the old lease, was willing to take a new lease on different terms, and, after he found that Fat On would pro*316cure a lease or that he could not get a new lease from Ahulii, he then consulted Mr. Tavares, an attorney, and was advised that he could hold under the original covenant. The complainant introduced in evidence some carbon copies of letters, without the signature, said to have been written by Mr. Tavares, and this is indicated in the -evidence of Yip Lan, — the one is dated June 20, and the other June 24, 1914, — in which respondent is informed by Tavares that Yip Lan proposes to stand on the original covenant. In my opinion it was too late for him to do so as the evidence of waiver of that covenant is complete, and by retaining the Fat On agreement and receipt to protect his own possession, Yip Lan became, in law, in my opinion, the tenant of Fat On, and should be held to have agreed to the arrangement made by Ahulii with Fat On for the remaining months of 1914, and is not entitled to specific performance of the covenant for renewal in the old lease. The covenant for renewal in the old lease was merely an option which should have been exercised at or before the expiration of the lease, June 1, 1914. Ahulii’s letter of June 1 shows that he regarded the lease entirely as terminated, and Yip Lan’s actions in the premises show that he did too, but afterwards, on advice of an attorney, sought to go back and stand upon the said covenant in the old lease. A court of equity should not decree specific performance of said covenant under the facts and circumstances shown by the record in this case.