Conolley

Plaintiff leased to “R. O. Payton, J. A. Payton, J. H. Payton and J. B. Payton, as co-partners doing business under the firm name and style of Payton Bros.,” for a term of three years from the first day of September, 1921, certain lands, livestock, and machinery. The terms of the lease material to the determination of this appeal are as follows:

The lessees went into- possession, but from the beginning they failed to carry out the terms of the lease in material respects, so that at all times thereafter the plaintiff could have exercised his option to terminate it. On the sixteenth day of December, 1922, the defendant, in his official capacity as sheriff, took possession of all the increase of the aforesaid livestock under a writ of attachment issued in an action against the lessees, prosecuted by one of their creditors. Prior to the levy of the writ of attachment, in a conversation between one of the lessees and the attorney for plaintiff, the other lessees not being present and it not appearing that such lessee was authorized to represent them in the matter, it was orally agreed “that the lease was to be canceled . . . without any foreclosure." This copartner testified: “There…