At the inception of the trial, for the reason that it had not been pleaded as a defense, objection was made to the introduction of any testimony tending tó show that the plaintiffs had released the property in September, 1915, but when the letters were offered in evidence, tending to show a releasing and that another lease of the property was actually executed by the plaintiffs to a third person, their counsel expressly stated there was “no objection” and the evidence was received without objection and the case was tried by the defense upon the theory that the subsequent acts and conduct of the plaintiffs, after the assignment of the original lease by S. H. Smith to Smith Brothers and Goodman, amounted to a surrender of the original lease by operation of law as to S. H. Smith at the time he sold out and retired from the firm and that he was then discharged from any further liability. The plaintiffs disputed that contention and claimed that he was yet liable for the amount of the unpaid balance of the rental under the terms of the original lease.
That was the issue upon which the case was tried, upon which the court instructed the jury, and the jury found for the defendant.
*1311. It appears from the bill of. exceptions that ‘ ‘ counsel for both parties state that there was no express surrender of the lease.” The jury was then instructed that it was a question of intent as to whether there was a surrender by operation of law, concerning which the court gave the following instruction:
“The mere negotiations for a reduction of rent not followed up by a contract would not be a fact in itself warranting such a conclusion of a surrender. The fact of turning over the keys would not in itself be sufficient. But you gentlemen are to determine from all these facts and all these circumstances what was in the minds of the parties at this time, what was the intention of the parties in this conduct which has been produced here before you.”
The court also instructed the jury “as a matter of law that the assignment of the lease by defendant S. H. Smith in itself could not release him from the payment of the rent without the release of him by the plaintiff,” and the fact that Mr. Smith “sold his interest in the lease to other parties, with or without the consent of the plaintiff, would not necessarily imply that he was releasing Mr. Smith from the operation of the original lease,” and that the reduction of the rent in itself would not be such a fact as would release the defendant S. H. Smith, and that the mere negotiations for a reduction of rent, not followed up by a contract, would not be a fact in itself warranting such a conclusion of a surrender. The, court gave this instruction:
‘ ‘ A surrender takes place by operation of law when the parties, without an express surrender, do some act which implies that they have mutually agreed to consider a surrender made, and when the keys are delivered and the possession resumed by the plaintiff, it is for you to determine whether the possession is of an exclusive character, with the apparent intention of keeping and controlling the premises as plaintiff’s *132own property, to the exclusion of the tenant in case the tenant desires to return.”
No exceptions/were taken to any of -the instructions which were given by the court.
The question as to whether there had been a surrender by operation of law was fully and fairly submitted to the jury, and there is ample evidence to sustain the verdict.
2. There was no error in refusing to give plaintiffs ’ requested instruction number 7. Under that instruction the defendant would be deprived of all other defenses and the only question for the jury to determine would be whether he was released “from this payment by reason of a contract entered into between plaintiff and Chester A. Smith. ’ ’
3. There was no error in refusing plaintiffs’ requested instruction number 8. That would exclude from the jury all testimony of a surrender “prior to September, 1915,” and in legal effect would instruct the jury to return a verdict for plaintiffs for $1,058, and the amount claimed at the trial was $1,408.
After a careful consideration of the record, we think the plaintiffs had a fair trial and that there was ample evidence from which the jury could find there was a surrender of the lease by operation of law.
Judgment is affirmed. Affirmed.
McBride. C. J., and Bean and Bennett, JJ., concur.