Plaintiff leased to defendant certain real estate in the town of Ft. Pierre, S. D. This action was brought to recover a balance which plaintiff claims to be due as rentals under the lease. Trial was had before a jury, and verdict and judgment entered in favor of the defendant. It stands undisputed that the plaintiff acting through one Yokum, made a written lease of the premises to the defendant for the term' of ten months; that defendant entered upon the premises under the lease, retained possession thereof, and paid the rentals for a period of three months, when he vacated the premises, and has refused to pay any further rentals which would have become due under the lease. It is the contention of plaintiff that defendant abandoned the lease, while defendant contends that he surrendered the lease and premises to plaintiff and that plaintiff accepted such surrender, thus terminating the lease and defendant’s liability thereon. It is further conceded that if defendant surrendered or attempted to surrender the lease it was to the said Yokum and not otherwise, and it is the contention of plaintiff that Yokum had no authority as agent of plaintiff to accept a surrender and possession of the leased premises. It is undisputed that after defendant left said premises Yokum leased part of the same to other parties. There was some evidence which perhaps might be construed as tending to show that Yokum had an equitable interest in the premises, and by virtue thereof some personal interest in the matter of leasing. But no such issue is presented by the pleadings, and we think this case should be treated as involving only the question of Yokum’s agency.
[i] The evidence discloses no authority on the part of Yokum other -than to lease the premises and collect the rentals therefor. *615It would follow that without proof of further authority, Yokum was not authorized to bind the plaintiff by accepting a surrender.
[2] The termination of defendant’s liability under the lease is an affirmative defense, and the burden of proof rests upon defendant. It is not clear that the evidence in the record is sufficient to sustain this burden on the part of defendant. But for reasons hereinafter stated we deem it unnecessary to pass upon the sufficiency of the evidence. An issue of fact as to surrender and acceptance was submitted to the jury under instructions presumed to be correct, and for the purposes of this case we shall assume, without deciding, that there was sufficient evidence to warrant a submission of that issue to the jury.
[3] Appellant further assigns as error certain rulings of the trial court admitting evidence over plaintiff’s objection, as to defendant’s opportunities for subleasing parts of the premises, and his request to Yokum to be allowed to sublet the same. The lease itself contained a provision under which defendant covenanted not to sublet without express consent of the plaintiff. It Is not clear upon what possible theory this evidence was received or permitted by the trial court. If it be assumed that Yokum had authority to sign the original lease, and to collect rentals, it cannot be presumed he had authority to approve proposed tenants under a sublease and to consent thereto on behalf of plaintiff. The burden of proving such’authority was upon defendant precisely to the same extent as it was to prove authority of Yokum to accept a surrender of the lease, and there is 'not in the entire record a scintilla of evidence tending to show that Yokum had authority to consent to a sublease.
[4] Defendant, however, was permitted to show over proper ojections, transactions between himself and Yokum with reference to subleasing, and in that connection to show that he could have sublet to various persons at a rental which would have been profitable to him and would have enabled him to go on with the lease, and that the proposed tenants were reputable and unobjectionable in every way, but that Yokum refused defendant permission to sublet. The inference which a jury would naturally *616draw from this evidence would be that Yokum’s conduct was unreasonable, arbitrary, and injurious to the defendant as a tenant and would justify him in attempting to surrender the lease. There was no pretense whatever, that plaintiff, Hamm Brewing Company, had any knowledge, implied or otherwise, of the proposed subletting or of the proposed tenants, and there could be no theory of ratification of Yokum’s acts in that connection. The only theory on which defendant could have been permitted to offer this class of evidence must have been that defendant had the right .to apply to Yokum as plaintiff’s agent for permission to sublet. It is not contended by defendant that he ever applied to plaintiff directly for such permission. The jury might easily have assumed that such authority existed and might have inferred therefrom authority on the part of Yokum to accept a surrender of the lease, especially in view of the unwarranted remarks of defendant's counsel in his argument to the jury, among which was the statement: “There is not any man on this jury of this community but knows Bob Yokum has always treated this building as his building,” and, “Mr. Yokum had been conducting a saloon in this building, and this saloon business was always a touchy affair. He had a provision in the lease here forbidding the sale of intoxicating liquors on these premises or conducting a saloon in that building. lie has always had that picture before him. He is praying for the time when Ft. Pierre will again become wet and he can again ‘run a saloon there. And he put in the clause there forbidding any one from starting a saloon in there. That is the reason Mr. Yokum was so touchy about subletting to any one else.”
A consideration of the somewhat peculiar conditions surrounding this lease makes it apparent that evidence of these transactions between Yokum and the defendant as to subletting, its profitable character to defendant, the terms thereof, the good character of proposed tenants, and Yokum’s refusal, together with the remarks of counsel thereon, all taken together, could not have_ been other than extremely prejudicial to appellant. Objections to this evidence should have been sustained. For this, if for no other reason, the judgment -and order of the trial court should be reversed and a new trial granted.