(concurring). The following are my reasons for concurring in the result reached by the majority in this case:
1. It is not contended by the bank that it was ever an innocent purchaser and holder of the Bowie rent note involved herein. The bank had-full knowledge at all times of the terms of the rent note, and the bank does not claim or have any rights greater than the rights of the appellant, Sibley.
2. Sibley all the time had the right to interpret the rent contract with Bowie, and to agree with Bowie on the meaning of the overflow clause. -
3. Bowie testified that Sibley did agree with him that the rent for 1942 was to be on the third and fourth basis. On Tr. p. 44-45, Bowie testified: “Q. Did you have a conversation with Mr. Sibley along about the time the water went down, or was going down, with reference to whether or not it was worthwhile to replant any cotton on the west side of the levee? A. I don’t recall after the water had gone down, but we could see the water from where we were. He was up at the place and we discussed the matter and when we tried to go across the farm the heavy mud would stick to the side of the wheels, but I asked him about planting the cotton over, or plant it back in corn, and he said it would not make much difference, but to go ahead and plant it in cotton, and that it would be on a third and fourth basis.”
Bowie gave this testimony on direct examination. Sibley never denied it in any way. So the record stands undeniecl that Sibley clicl agree to the third and fourth basis for the 1942 crops’
4. The above being true, the interpretation of the overflow clause was rendered moot — the parties had interpreted it themselves. I do not agree with the interpretation of the overflow clause as expressed by the majority opinion herein, because — as I see it — Bowie was not prevented from making a cotton crop on the overflowed land; he did in fact make a cotton crop; and in the absence of the interpretation between the parties, as above set forth, then under the wording of the overflow clause, Bowie would be liable for the full note. But while the water was still on the land, or thereabouts, Sibley agreed with Bowie for the third and fourth basis for the 1942 crops, and he cannot now be heard to assert the contrary.
So, I concur in the affirmance of the case.