(180 P.)

In Jones v. Hoard, 59 Ark. 42, 26 S. w. 193, 43 Am. St. Rep. 17, the court said:

de-party retaining a counterpart, the lessee's unan"Where a lease is executed in duplicate, each thorized alteration of his counterpart, though it annuls it, does not affect his rights under the contract actually made."

|

(180 P.)

rental was mentioned, and the plaintiff during all this time having an opportunity to examine her lease, and either through carelessness or indifference failing to do so until long after the defendant had acquired the lease, we are of the opinion that it would be extremely inequitable, under all the facts and evidence in the case, to give the relief she has demanded.

In Leonard v. Shale et al., 266 Mo. 123, 181 S. W. 16, it is said:

posed to assist and protect the aged and in-
firm, where it is seen they need protection,
yet we fail to discover in the instant case
wherein the plaintiff's age rendered her in
any way incompetent to transact business;
on the contrary, she manifested a keen mem-
ory and an alertness in looking after her
own interests. She had been transacting her
own business all her life; she had owned a
farm near Stroud, and had leased the same
every year for about 12 years for agricultu-
ral purposes. The defendant when informed
of the alteration offered to carry out the
terms of the lease as shown by the dupli-
cate in the possession of the plaintiff. Plain
tiff, however, seemed not to have been will-
ing to abide by these terms, but demanded a
bonus of $1,600 for a new lease. Conceding
that Hillyer, the original lessee, committed a
wrong and made the alteration without au-
thority from the plaintiff, still the plaintiff
was not justified in closing her eyes and for
more than 1 year failing to examine the du-
plicate in her possession, especially when her
attention had been specifically called to the
fact that it was impossible to use the lease
with the $1.50 rentals, and thereafter, know-
ing that the lease had been assigned, and re-
ceipting for the same at the rate of $1 per
acre from an innocent purchaser as disclosed
by the evidence, she is and should be estop-ly
ped from now claiming the right to have the
lease canceled.

[1] This rule is well expressed in the principle that whenever one of two innocent persons must suffer by the acts of a third, he who enables such third person to occasion the loss must sustain it. 16 Cyc. 681.

"What I induce my neighbor to regard as true is the truth between us, if he has been misled by my asseveration." Kirk v. Hamilton, 102 U. S. 68, 26 L. Ed. 79.

The defendant Magnolia Petroleum Company, as we have seen, purchased the lease from the Corsicana Petroleum Company after the same had been recorded and after the first quarterly payment, being $40, had been made to the plaintiff and receipted for. The lease as recorded disclosed that the rentals were $1 per acre. The receipt showed a payment of $40 in full of the first quarter for the rent on the 160 acres. If a wrong had been perpetrated on the plaintiff, she had all the information in her power that would enable her to detect the wrong. It is a wellsettled principle of equity that no one can maintain an action for a wrong where he consents to the wrong, and one who fails to forbid what he can forbid and what he should forbid is held to assent.

The defendant, having no knowledge that the alteration had been made, coupled with the further fact that the plaintiff had had in her possession for over 1 year the duplicate original retained by her, wherein a different 180 P.-55

"The agent of a landowner, having negotiated a sale, directed that the deed be sent to the father of the grantee. The father without authority delivered the deed, and it was placed on record; the grantee going into possession. Such grantee remained in possession for a considerable period of time after that fact was known to the landowner and his agent before any attempt was made to expel him or cancel the conveyance. Held that, the landowner having negligently placed the deed in such a situation that the grantee might procure it, he was estopped to deny the validity of a deed of trust given by the grantee while in possession and accepted by defendant in good faith."

In Bostwick v. Mutual Life Ins. Co. of N. Y., 116 Wis. 392, 92 N. W. 246, 67 L. R. A. 705, the court spoke as follows:

other, signs a written instrument, is conclusive"A person who, in a business deal with an

presumed, as to that other and all persons claiming under him through such instrument, to know the contents thereof, no fraud or deceit being used by such other or by any one for whose conduct he is responsible, reasonably calculated to and which does induce such person to become a party to such instrument without reading it."

"Mere ignorance of the contents of a paper by one who becomes a party thereto under a mistake as to its import, will not enable him to avoid his act."

"He who is inexcusably negligent in a business transaction forfeits the right to judicial remedies for relief, and not because of any favor or indulgence which the law extends to the wrongdoer, but because of failure on the part of the injured person to exercise that care for his own protection which the policy of the law requires as a condition of its protection; such policy being to aid only those who exercise some reasonable care to guard their own interests."

N. W. 1042, the court said:
In Schaller v. Railway Co., 97 Wis. 31, 71

*

"From the delivery and acceptance of the bill of lading at the time the goods were delivered to defendant for shipment, the presumption arises that plaintiff assented to it. The presumption is not conclusive; but mere ignorance of the contents of the bill of lading, arising from failure to read it or to make some reasonable effort to obtain information in that regard, in the absence of any evidence of fraud on the part of the defendant or of the use of any means to deter the shipper from fully understanding the contract, is not sufficient to

overcome it. * *

"The familiar rule applies that if a person makes a written contract with another he takes

"In Brown v. Wilson, 160 Pac. 94, L. R. A. 1917B, 1184, it was not held that $1 was not a valuable or sufficient consideration, but, on the contrary, it was distinctly recognized as such. In that case the lease was for a recited considnegli-eration of $1 and the covenants and agreements

upon himself the responsibility of acting intelli-
gently, and exercising ordinary care to inform
himself of its provisions. Failure to read the
contract or to examine it, or, in case of in-
ability to do so without assistance, to obtain
assistance if reasonably within reach, is
gence as a matter of law."

See, also, 10 R. C. L. 694, 695; Hill v. Atlantic & N. C. R. Co., 143 N. C. 539, 55 S. E. 854, 9 L. R. A. (N. S.) 609.

We are therefore of the opinion and so hold that the lease is not void as against the defendant by reason of the alteration for reasons above stated.

of the lessee therein contained. It was for a term of 10 years and as long thereafter as oil or gas was produced. Certain stipulated royaland the lessee covenanted to complete a well ties on the oil and gas produced were provided, within 4 months, or pay at the rate of $80 in advance for each additional 3 months such completion was delayed, and also contained a surrender clause. In the majority opinion it was said that the only consideration for the lease, as a whole, was development, and, with reference to the $1, it was said: 'We hold that the dollar sur-paid Ruhl [the lessor] at the time of the execution and delivery of the lease was the sole and only consideration paid to hold the lease for the 4-month term within which the lessee had to enter and complete a well, and that such consideration did not extend to uphold any other stipulation in the lease; and, further, that the agreement on the part of the lessee to pay delay money after that time was a provision made for the sole purpose of prolonging the lease.'

[2] The remaining question to be considered is as to the invalidity of the lease under and by virtue of what is known as the render clause. In justice to the trial judge, we desire to say that at the date of the trial of this cause the rule announced in the case of Brown v. Wilson, 160 Pac. 94, L. R. A. 1917B, 1184, was controlling in Oklahoma, and was binding upon the district court, and under the rule therein announced the trial court was without authority to question the "In other words, the 'contract' in that case wisdom, propriety, or correctness of the law was held to be an agreement to lease for succestherein announced, and, regardless of what sive quarterly terms, after an initial term of 4 his individual views might have been in the months, and the payment of, or a binding oblipremises, was forced to hold the lease void gation to pay, a distinct and independent conunder the surrender clause; the lease there-sideration for each succeeding quarter was held in considered being in all respects similar to the one in the instant case.

The rule announced in the Brown v. Wilson Case, supra, was followed by other decisions of this court until the case of Northwestern Oil & Gas Co. v. Branine, 175 Pac. 533, decided October 8, 1918. Justice Hardy, in delivering the opinion of the court, said:

"Where a cash bonus of $160 was paid for an oil and gas lease, which provided that lessee should commence the drilling of a well within 12 months from the date thereof or pay a quarterly rental of $40, and further provided that the lessee might, at any time upon the payment of a further sum of $2 and as accrued liabilities, surrender the leased premises and terminate all future liabilities under the lease, held, that the cash bonus supports each and all the covenants in the lease; and held, further, that the presence of a surrender clause in said lease did not render the same void for want of mutuality nor confer on the lessor the right to terminate said lease at will."

It was further held in the case just cited that the court had no right to fractionize a contract nor divide it up into sections, and say that the cash bonus supported any particular covenant to the exclusion of another, when such construction would be contrary to the clear intention of the parties as gathered from the face of their written agreement.

In the later opinion of this court, Rich V. Doneghey, 177 Pac. 86, the rule announced in Brown v. Wilson, supra, was in express terms overruled. Justice Miley, delivering the opin

essential. By construction, the $1 was held to support the lease for the first term of 4 months

only; and since, as it was held, by reason of the surrender clause the lessee was not obligated to develop or pay the stipulated sum of $80 for each of the succeeding quarters, there was no consideration for the agreement to lease after the first term of 4 months. Had it been then thought that the $1 supported the lease for the term of 10 years instead of only the first 4 months thereof, it is probable that the majority of this court would have reached a different conclusion in that case on the question now under consideration. The error in that opinion, in this connection, as we now see it, was in the portion we have quoted above, that the $1 consideration supported only a 4-months term, and did not extend to and uphold any other stipulation in the lease. That portion of the opinion has been overruled in effect by the recent decision of this court in Northwestern Oil & Gas Co. v. Branine.

*

"The form of the written agreement in the Branine Case and the one in this is the same. The only difference between the two agreements is as to the amount of the consideration, and, as before stated, that is not material to the questions raised in this case as to the alleged invalidity of the grant for want of consideration. We cannot construe the grant here into one for 6 months from its date, with an option to extend the same beyond that term for successive monthly periods, without doing violence to the clear intention of the parties as expressed in unambiguous language. Their language is: 'It is agreed that this lease shall remain in force for a term of five years from this date and as long thereafter,' etc.-

"That language can have but one meaning.

(180 P.)

In Lindlay v. Raydure (D. C.) 239 Fed. 928, we quote as follows:

"A consideration of $1 is sufficient to support an oil and gas lease by the terms of which the lessee's interest is subject to defeasance for breach of condition subsequent to drill wells and pay royalties, though he is not bound by any covenant to perform the condition."

ful by the subsequent covenant that the lessee | extend the time by making the delay or rent shall, during that term, complete a well within payments in accordance with the contract, and a specified time or pay for subsequent periods that the lessor was bound to accept such delay of delay. These subsequent covenants have no or rent payments when so made." bearing on the terms of the grant, except in so far as failure to comply therewith may operate as an abandonment, or cause a forfeiture thereof, if the agreement should so provide. No other construction, without doing violence to the plain meaning of the language employed, can be placed on the writing as a whole than that the recited consideration of $1 is for the grant for the entire term of 5 years, and as long thereafter as either oil or gas is produced, and also the right of termination given the lessee upon compliance with the conditions thereto attached. "We therefore conclude that the grant or so-called 'lease' for the full term expressed is supported by an independent valuable consideration, and is therefore not void for want of mutuality, and Brown v. Wilson, supra, holding otherwise, is on this point overruled."

The principle announced in the above case is practically the same as that in Shaffer v. Marks (D. C.) 241 Fed. 151, in which Justice Campbell said:

"In an oil and gas lease, given for the consideration of $1, which provided that the lessee should drill a test well within one year and should pay a specified sum per year for the time during which the completion of the well was delayed, the consideration supports, not only the right to drill the well during the first year, but also the privilege of paying the specified sum and securing a renewal of the right, so that the right to make such payment and secure the renewal is not dependent on a subsequent agreement by the lessee to make the payment."

"The rule that unperformed contracts, optional as to one party, are optional as to both applies only to a contract which is wholly executory, in that it consists of mutual promises, each the consideration of the other, and does not apply where a consideration is paid for an oil and gas lease, which gives the lessee a present interest in the right to explore for the mineral and a contingent interest in the minerals discovered, though he has the privilege of surrendering the lease at any time."

"The lessee under an oil and gas lease for the term of ten years, and as much longer as oil and gas should be produced in paying quantities, with right to surrender the lease and be discharged from liability thereon, the consideration for which lease had been paid, was not a tenant at will, so that the doctrine that a tenancy at will of one party is at the will of the other does not apply."

"It will be seen, from an examination of Brown v. Wilson, supra, that in that case the court first considered the question as to whether the lessees had not forfeited their rights under the lease by failure to make the payments of delay or rent money, in strict accordance with the terms of the lease, and decided that there had been such delay as entitled the lessor to assert and have declared a forfeiture, very much as was done in the Frank Oil Co. Case, supra [29 Okl. 719, 119 Pac. 260, 43 L. R. A. (N. S.) 487]. And if, at the time this last-mentioned case was decided, the court had entertained the same view as to the right of the lessor to refuse to accept a payment tendered in strict accordance with the terms of the lease, no reason is perceived why the court would not in that case have announced the doctrine which would have been decisive of that case, without the necessity of determining whether or not the delay in the tendering of such payment worked a forfeiture. The very fact that the court did not so do, together with the observations made by the court in the Frank Oil Company Case and prior cases to which reference has already been made, it seems to me, warranted the conclusion, until the announcement in the Hill Oil & Gas Co. Case [53 Okl. 748, 157 Pac. 710] and Brown v. Wilson, that the 'or' surrender clause lease, like the one at bar, as well as the 'unless' lease, We therefore hold the lease in the case at based upon a valuable consideration, while prob- bar was not void by reason of the surrender ably not the subject of equitable relief by way clause. The judgment of the court below is of specific performance in the state courts, were, therefore reversed and remanded, with direchowever, valid contracts in the nature of options to enter judgment in favor of the detions to the lessee to explore for oil and gas during the initial period fixed and such additional time as might be secured by such subsequent payments as the lease provided for, and that the initial consideration covered not only the first period mentioned, but also the right to

"In an oil and gas lease, granting for the consideration of $1, paid by the lessee, the right to drill and operate wells and the right to the oil and gas discovered thereon, subject to a payment of royalty, a clause authorizing the lessee at any time to surrender the lease and be relieved from all liability thereon does not invalidate the lease as a matter of principle, nor according to the weight of authority or the decisions of the courts of Kentucky, where the land was situated."

fendants, provided that they pay rentals at the rate of $240 per year and otherwise comply with the terms of the lease.

All the Justices concur, except KANE, J., not participating.