(dissenting) : The one thing wrong, to my mind, about the foregoing is the holding that the jury were supported in their finding that there was no understanding that the property turned over to Jacobson was to be his. He swore that it was and gave a clear statement of the conversations with Mc-Guigan, and the reasons why the latter wanted to get from under the obligations to pay rent on a losing venture.
The plaintiff, himself, so fully and completely corroborated this as to convince me that the defendant told it as it was. He (plaintiff) testified: ■
“On Saturday night, January 30, 1917, I turned over the keys to Mr. Jacobson. I told him (Jacobson) if conditions did not improve I would not care to continue long in the way I was running. I told him, I am giving you some valuable equipment here that could be used in other business, such as electric light fixtures and heating plant, and this other equipment could be disposed of, and I feel like I should have some compensation for that. Well, he said he didn’t know anything about the theater' business, he didn’t care to go into it, and he didn’t really feel like constructing it into another business, and I told him I would like to have some compensation for this equipment he could use, and he said he didn’t see how he could give it to me. I told him, now, I said, I guessed I would get out of this place, you will take all the equipment and use it; he said I don’t like to do that; I don’t like to get into the newspapers by closing up the place, I would like you to keep on. Nothing was said about foreclosing the mortgage. I didn’t tell him that I would turn over the property. . . . Of course, the general understanding was that when I went out of there that I was not carrying out the terms of the lease; at the same time, I never at any time fully agreed to turn over this. There was not, to my recollection, any understanding or agreement that he should take the property in satisfaction of any claim he might have against me on the lease. . . .
“Q. What do you mean by not fully agreeing to it? Ans. Well, I was operating this place and Mr. Jacobson came to me and we talked about the condition of the business, and as I said this morning that I told him that I was supposed to give up this but I didn’t feel that I should because there was equipment there he could use for other business.
“Q. You testified, did you not, that you wanted him to allow you something and he declined to do it? Ans. Yes, sir; I asked him for something arid he said he could not give it to me.
“Q. What is the paper I now show you? Ans, This is the agreement Mr. Jacobson presented to me, wishing me to sign.”
*750It appears from the evidence that this was Monday or Tuesday following the Saturday the property was turned over.
“It was all prepared when it was presented to me. I did not sign it. He asked me to sign it and I told him I would think it over and as I had previously consulted my lawyer on other matters and submitted them to him and he told me not to sign it for the present. . . .
“Q. When he presented it you read it and understood it, didn’t you? Ans. Yes, sir.
“Q. Did you say anything to him then about you having any further interest in that business, any further right to the property there? Ans. I don’t remember of saying anything.
“Q. Well, did you there, at that time, make any claim to any rights in this property? Ans. Not at that time, no. Shortly after that I went to Oklahoma and from there to Kansas City.”
He testified that the reason Jacobson did not want to foreclose the mortgage was because it would be in the papers. He was asked if it was not the agreement to turn over the property to Jacobson, why he did not deny it when he was told it was what he had agreed to do, and answered:
“I wanted to be careful not to sign any more papers until I knew; it didn’t hurt for me to be careful. I didn’t know just what altogether my right here.”
How he could give up the building and surrender possession of the equipment so as to be relieved from continuing a losing venture and inform Jacobson that he was “giving him some valuable equipment” and then claim he was merely putting Jacobson in position to foreclose, is beyond my comprehension. Manifestly, he had no intention to claim any rights in the property when he delivered it, nor until he had looked over the written relinquishment which he had agreed to sign, and then concluded not to sign, and finally determined to claim he had not divested himself of the title when he succeeded in getting Jacobson to take the stuff ,off his hands.