The opinion
By the Court, Currey, C. J., on petition for rehearing:
Evidence of the execution of a lease was offered at the trial by the plaintiff. The lease itself was not produced, it appearing that it had been destroyed by the lessee. The evidence was objected to on the ground that the lease had been destroyed by the party whose interest it was to preserve it, but the objection was overruled. In our opinion in this case, we said we were not- satisfied that the testimony of the witness respecting the lease was sufficient to prove the relation of landlord and tenant between the persons alleged to be the lessor and lessee, and we further said the evidence respecting the lease should have been excluded, as no effort wa's made to prove the contents of the destroyed instrument.
We are now asked to grant a rehearing because of the expression that the evidence “ should have been excluded, as no effort was made to prove the contents of the lost instrument, inasmuch as the objection of the defendant’s counsel was not on that ground.” It will be observed that before using the language above quoted we said we were not satisfied the testimony of the witness respecting the lease was sufficient to prove the relation of landlord and tenant, etc. This goes to the extent of holding that the .evidence respecting the lease was insufficient to establish the relation of landlord and tenant between Moon and McKenna. This evidence seems to have been materially important for the plaintiff. Without it, it may be, the plaintiff would not have recovered anything. The defendants made the point on the motion for a new trial that the evidence did not show or tend to show any right in the plaintiff to recover any portion of the premises. . -The testimony respecting the lease being received, and being, as it stood, insufficient, its effect was objected to on *419 the motion of the defendants for a new trial. A new trial should have been granted, we think, on the ground that the evidence did not justify the finding and judgment so far as it was in plaintiff's favor. Both parties moved for a new trial and we are of the opinion the motions should have been granted.
The petitioner’s counsel has discussed at length under what circumstances secondary evidence may be admitted to prove the contents of lost or destroyed instruments. The case, as it is before us, requires no expression of an opinion on the subject. We have endeavored to settle all the questions necessary to be decided upon the record of the case in this Court. When the cause is again tried each party will be permitted to produce such evidence as he may he able, material to the issue on his part, unembarrassed, we apprehend, by anything contained in the opinion of the Court heretofore delivered.
Rehearing denied.