The opinion
On Motion for Rehearing.
[5] Both appellant and appellee have filed motion for rehearing. The appellant complains, in effect, that this court erred in holding that the evidence showed any liability at all on the part of the John Church Company for the acts of the John Church Company of Texas. We are still of the opinion that the John Church Company is responsible for the payment of the amount due on the lease contract, but we are of opinion that we erred in fixing the sum due at $4,125, at the date of trial, when it should have been for $3,175, for which last amount appellee is entitled to judgment with foreclosure of his landlord’s lien, and the judgment of this court will be modified in that respect.
As to appellee’s motion for rehearing we are not satisfied with our former holding in reducing the amount of the judgment and disposing of the rents which hadi not matured. We still adhere to our holding that the John Church Company is responsible for them, but are of the opinion that the evidence was not such that the judgment for the full amount was justified, as the testimony of appellee does not show positively the length of time he had leased the building to the music company for the full term, nor is there any testimony showing the value of the lease for the unexpired term, if the building had not in fact been relet for that time, which would form an equitable basis for the proper judgment; and we see no reason why this cannot be done by proper pleadings and evidence upon a retrial of that issue or branch of the case. We therefore change the judgment heretofore rendered by us, by affirming in parti and reversing and remanding in part the judgment of the lower court; that is, we'affirm the judgment to the extent of '$3,175, being the amount of rent that had become due and payable at the date of the trial, and the foreclosure of the lien; and we reverse and remand as to the rents to become due and not included in the $3,175, for the purpose of enabling the appellee, if he so desires, to show whether or not the rented building has been leased, under the terms of his contract with the John Church Company for unpaid time of the original lease, and in the event it has not been so relet, to show the value of said unexpired lease, so that judgment may be rendered upon this branch of the case in accordance with the facts.