
    No. 5868.
    ELIAS T. JONES vs. F. W. POSTLETHWAITE.
    Syllabus.
    Involves only issues of -fact.
    Appeal from the Civil District 'Court for the Parish of Orleans, Division ££C,” No. 101,701. Hon E. K. Skinner, Judge.
    W. A. Hahns, for plaintiff and appellee.
    H. W. Robinson, for appellant.
    . E. M. Stafford, Merrick, Lewis, Gensler & Schwartz, attorneys.
   His Honor, JOHN ST. PAUL,

rendered the opinion and decree of the Court, as follows:

This is a suit for rent against a tenant and the surety on his lease, one Louis E. Chaplain.

The latter pleads a discharge, alleging that plaintiff, after the abandonment of the premises by the tenant (Postlethwaite), took possession thereof and leased them to a new tenant, to-wit, one Chas. A. Wagner. In the alternative he alleges that said Wagner took possession of the premises and agreed to assume the rent for the unexpired term, now sued for, and he calls said Wagner in warranty.

The evidence is conclusive, and the trial judge so found, that plaintiff did not lease the premises anew to Wagner, or do anything else to the prejudice of his rights against Chaplain as surety. It does appear, however, that, as between Wagner and Chaplain and one Frank S'. Einstein, a friend of the latter, there was some sort of agreement by which one John McGrath was to take possession of the premises, a barroom, and continue the business for the remaining time of the lease, which he did. But the nature of that agreement is not made clear by the evidence, and the trial judge properly nonsuited the call in warranty.

Opinion and decree, Nov. 24, 1913.

Rehearing refused, December 22, 1913.

Judgment- affirmed.  