(dissenting).
I am compelled to disagree with the majority.
The majority opinion holds that the case turns upon the intent of the parties, and they affirm the trial judge in his finding that Smith and Neely did not intend the option in the 1954 lease to be surrendered by execution and acceptance of the 1957 agreement. To reach this conclusion, one must ignore the direct testimony in the record and rely upon a curious chain of circumstantial inferences.
Smith testified on cross examination:
And at that time, as to your state of mind, you wanted to do the thing Mr. Neely wanted done if it fit your picture, isn’t that true ? Q.
“A. If he wanted—
“Q. Separate lease.
“A. If he wanted a new lease, I was ready under the advice of my attorney to give him one.
“Q. You mean to tell this Court that you needed the advice of a lawyer in order to surrender an option?
“A. Yes.
“Q. For Mr. Neely to surrender his option, you had to see a lawyer?
“A. When it is fooling with tax matters.”
And again, on redirect:
“Q. Did you intend to be bound by that lease agreement when you signed it?
“A. The last one?
“Q. Yes.
“ * * * [objection]
“A. Yes.
* * * * sje *
“Q. At that time did you intend to execute a new agreement which deprived Mr. Neely of an option?
"A. Yes.”
*296In-addition to .this direct testimony as to what at least one of the parties intended, there was testimony hy both Smith and Neely that neither discussed whether the option was to continue or to be surrendered. In the words of Neely:
“There has never, never to my knowledge, been one word mentioned about the option on this place.
“Q. Between you and Mr. Smith?
“A. Between me and Mr. Smith or' anyone else.”
The facts upon which the trial court based its finding of intent are these: Neely came to Smith and requested that he sign a new agreement which Neely had prepared containing the lease agreement without the option provisions. Neely indicated that he was having tax difficulties. Nothing was said about the continuance or termination of.the option. Smith agreed to sign the agreement after seeking the advice of counsel.1
There are at least two possible inferences from this evidence. One is that the parties intended the agreement to accomplish a surrender of Neely’s troublesome option, that is, that Neely was willing to release the option to bail himself out of a bad situation with the tax service. Another possible inference is that the parties intended the agreement to be a sham instrument designed to deceive the treasury department agents, and that Smith, with no possible benefit in it for himself, and after consulting his attorney, thought it was perfectly all right for him to participate in this little scheme. This is the alternative inference that the trial court, and the majority of this court have accepted and in the face of directly contradictory testimony by Smith. Their decision seems almost to rest upon a presumption that, when faced with tax difficulties, men will try to deceive the revenue agents, and lawyers will advise them to do so.2
In situations like this, where inferences from the surrounding circumstances are ai best highly equivocal the proper rule seems to me to be that expressed in C.J.S.:
“In the absence of an expression of an intention to the contrary, the acceptance by the tenant of a new lease for the same premises from the lessor during the term of the first lease constitutes a surrender by operation of law.” 51 C.J.S. Landlord and Tenant § 124 c. (Emphasis added.)
*297Since both Smith and Neely agreed that no expression was given to indicate the option would continue, acceptance by Neely of the 1957 agreement constituted surrender of the 1954 agreement. It follows that Neely could not thereafter enforce the option provisions of the earlier agreement. I would reverse the judgment of the lower court and enter judgment in favor of the appellant.
. The majority opinion mentions that . Smith did not -keep a copy of the 1957 agreement, but fails to point out that Neely gave his copy of the 1954 agree- ■ ment- containing the option provisions to Smith, and did not seek to recover it until the commencement of this litigation.
. Testimony ns to the advice given to Smith by his lawyer which was offered to show Smith's- intent in executing the 1957 agreement and which was admissible for his non-hearsay purpose, was nevertheless excluded in the trial court.