concurring.
I concur in the judgment but am of opinion that the court erred in refusing to admit the testimony of Herman D. Arnovitz as to the statement of Mrs. Kersting, the former owner of the property the restitution of which was the subject of the action. This conversation was had with the person who owned the property at the time that the rental contract was made and in whose behalf it was made and during the period when the relationship of landlord and tenant subsisted between the declarant and the tenant. This situation then brought into application that rule of evidence which makes competent.
“As against a party to the record an admission of a privy, such as a former owner of the property under or through whom he claims.” 31 C. J. S. 1101.
The evidence does not come clearly under the principle because it has application generally to questions of title but *613it is so analogous thereto as to make it applicable. In the cited authority it is said,
Decided February 18, 1944.“Privity between declarant and a party to the record may render an admission competent, and hence, where an owner of property makes admissions in disparagement of his title these may be shown against persons claiming under or through him. Such an admission, being primary evidence, is competent, although, it has been held, declarant is available as a witness;”
There was privity between the declarant and the present owner of the property who Was the party plaintiff in this suit.
BY THE COURT:This matter is before this court upon the defendant-appellant’s application for rehearing, wherein it is asserted,
(1) That the decision of this and the lower courts is against the manifest weight of the evidence and contrary to law;
(2) That this Court did not pass on all the questions complained of
(3) That the cause is one of great and general public interest.
(4) That the decision of this and the lower courts is in conflict with the universally accepted principles of law that to constitute a contract there must be a meeting of the minds.
We have given the matter patient consideration, and have gone over carefully our former decision, as well as the evidence upon which the same is based. We recognize the fact that there is an element of uncertainty in the matters presented. Where sharply conflicting evidence is presented to the trial court, and that court upon hearing the same, arrives at a conclusion, the reviewing court is inclined to sustain the lower court for the well established reason that the trial court has better opportunity to judge the weight to be given to the testimony of various witnesses. There was sharp conflict in this case in spite of the assertion of counsel to the contrary, and the Court is not inclined to depart from its former decision herein.
*614It .is asserted that the Court did not pass upon all the errors complained of. If counsel will read the Court’s opinion with patience, he will discover that the Court has passed upon all the' errors complained of. See next to last paragraph of opinion.
The application for rehearing will be denied.
BARNES, P. J., HORNBECK and GEIGER, JJ., concur.