
    MOWERY v. RIVERO.
    (No. 7940.)
    (Court of Civil Appeals of Texas. Galveston.
    April 29, 1920.
    On Motion for Rehearing, June 21, 1920.)
    Landlord and tenant <@=^83(5) — Evidence held to show tenant’s waiver of option to extend lease at price fixed.
    In a suit by tenant to restrain landlord from leasing to another after expiration of lease giving tenant an option for an extension of two years, evidence AeZd. to show that the tenant by his conduct and dealings, including offer of higher price, had waived the option to extend lease at the option price.
    Appeal from District Court, Harris County ; Chas. E. Ashe, Judge.
    Suit by J. M. Rivero against C. W. Mow-ery. Prom an order granting a temporary injunction, defendant appeals.
    Reversed and rendered.
    Warren & Conn, of Houston, for appellant.
    Turnley & Clark, of Houston, for appellee.
   GRAVES, J.

This appeal is from an order granting a temporary injunction, by which appellant, Mowery, was both restrained'from renting his 669 acres of land at Sandy Point, Tex., to another person than appellee, J. M. Rivero, and from in any way interfering with Rivero’s use and possession of the property.

Rivero had been renting and living on the place for three years at $500 annual rental under a written lease thereof to him from Mowery, the owner, which by its terms expired on January 1, 1920, but contained this provision:

“And at the expiration of this said lease the said lessee shall have the option to further lease and rent said premises for the further period of two years on same terms of five hundred (500) dollars per annum, providing the said premises are for lease by the owner, C. W. Mowery.”

He sought the injunction accorded him upon the claim that the premises were in fact for lease for the two years beginning January 1, 1920, averring that, unless leased to him in accord with the quoted stipulation in the contract referred to, which he upon his part stood ready, willing, and able to perform, they would be leased to one Link Day.

Mowery in reply denied that he had actually rented the property to Day, insisted that he had a right under the agreement invoked to decline renting it to Rivero, and further alleged that Rivero had not only violated other provisions of their contract by committing waste and damage upon the land to 'the extent of $2,000, but had through the course of the dealings between them with reference to a renewal waived any right or option the expired lease might have given him to extend the period of his tenure.

The trial court heard evidence upon the issues thus joined, a careful examination of the record of which here has convinced this court that the injunction writ was imprbvi-dently issued. It was undisputed, indeed affirmatively testified to by both immediate parties, that as far back as the summer of 1919 Mowery notified Rivero that, on the expiration of his lease, the place was not for lease or rent, and that Rivero then offered him $700 per year to rent it for one year, instead of the $500 per year for two years specified in the contract, and that Mowery declined. According to Rivero and his son, this oiler was later on, between that time and December 9, 1919, increased to $1,000, while Mowery says Rivero was never willing to pay that much, and, when advised that Link Day offered $1,000, agreed that Mowery should go ahead and rent to Day, in reliance upon which he, on December 9th, agreed to accept Day’s proposal. Whatever the discrepancies as to details between these versions, it is clear that Mowery never at any time intended to again rent the property at the old figure of $500 per year, and that Rivero was not only so advised months before the expiration of the lease he held, but at that time acquiesced in the exercise Dy Mowery of a right to decline an extension at that rate and endeavored to induce him to make a new and different agreement for one year at a higher price; that is, recognized that he no longer had an option to rent it under the renewal clause of his expiring contract and offered an arrangement outside of and beyond its terms. This deduction is emphasized by at least,two outstanding features of the testimony: Eirst, the fact that at no time during these negotiations nor before Mowery on December 9th consented to accept $1,000 from Day, did Rivero even claim or assert any right by virtue of his lease to continue renting the property at $500; and second, the undisputedly shown refusal and unwillingness of Mowery at all times to place himself where he would be expected to let Rivero have it longer at that price, even if he must himself take charge to prevent that result:

In these circumstances we do not think Rivero was in position to later come in and reassert his old option under his contract, but that his conduct and dealings with Mow-ery touching the same amounted to a waiver of it.

This conclusion determines the merits of the appeal and renders the discussion of other features presented by the record unnecessary. That entered below is reversed, and judgment is - here rendered dissolving the injunction.

Reversed and rendered.

On Motions for Rehearing.

After careful consideration of two separate motions for rehearing in behalf of the appellee, both have at a former day been overruled. In the original opinion, however, the date on which Mowery agreed to accept Day’s proposal of $1,000 is twice given as December 9th, when in both, instances it should have read “about November 20th.”

Rehearing refused. 
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