delivered the opinion of the court.
This was an action of covenant by appellant against appellee for failure to pay rent and surrender the premises in as good condition as when, received, in compliance with the provisions of the lease made by appellee and his-son, dated June 1, 1892, for the term of five years from date, at a rental of $3,000, payable in .monthly installments of $50 each. The son having died, this suit was brought against appellee to recover for the last, seven months of the term, and for $5.60 damages to the premises. It was admitted on the trial the rent and damages above mentioned were unpaid. A trial by jury resulted in a verdict and judgment against appellant from which he prosecutes this appeal, and for reversal of such judgment insists the verdict is against the evidence and the court gave improper instructions to the jury.
It appears from the evidence that after the execution of •the lease it was assigned to Lydia Bradley by appellant as further security upon a mortgage held by the former upon the leased premises, and thereafter it remained in the hands of Mrs. Bradley’s agent, who attended to the collection of the rents, and appellee was directed to pay the rent to him. Appellee and son regularly thereafter paid the rent to the agent of Mrs. Bradley until November 28,1893, when he retired from business, being succeeded by another son and William Wookey, who occupied the premises and paid rent to Mrs. Bradley’s agent until February 10, 1896, when they made a voluntary assignment for the benefit of creditors, after which the assignee remained in the premises, and paid the- rent to the same agent until August 10, 1896. At the latter date the property was sold to Augerson & Bohman by Wookey, or the assignee, who, by the consent of the same *66agent, occupied the premises and paid the rent for two months, after which the premises were vacant, although they had been advertised for rent by the. agent of Mrs. Bradley.
The appellee insists that after he quit,.the acceptance of other tenants and the receipt of rent from their hands by Mrs. Bradley, operated as a surrender of ■ the former lease. Upon this theory of the defense, at the request of the appellee, the court gave to the jury the following instruction : “ If the jury believe from the evidence that after the defendants went into possession of the premises described in the lease in suit, the plaintiff, either in person or by her agent, made a new lease to said premises, either in writing or verbally, to another person, and that thereupon such other person went into possession of said premises, and paid the plaintiff rent therefor, then this will amount to a surrender by the defendant and an acceptance by the landlord of said premises, and in such case your verdict should be for the defendants, provided you believe from the evidence that the defendants at the time thereof consented to and acquiesced in such acts by the plaintiff.” This instruction, in our opinion, can not be maintained. If the jury believed the evidence proved the facts recited in the instruction, which they probably did, we do not think such facts would constitute a surrender by the appellee and an acceptance by the appellant, without proof, also, of an intention of both parties that such actions should have the effect of doing away with the existing contract. • It is true such intention of the parties might be inferred from facts and circumstances proved at the trial, direct evidence not being .indispensable, but the instruction entirely ignores the question. Besides there appears to be no evidence that Walker himself had any intentions concerning the subject of his contract, for he gave it no attention whatever and was apparently unconcerned regarding it.
For the-error indicated the judgment of the Circuit Court will be reversed and the cause remanded.