I concur in the judgment. Concerning the facts as stated in the main opinion, it should be added that the witness J.H. Stewart testified that the lumber was not placed on the leased land.[1] Also, since the extension agreement, which was signed by defendant as well as by the plaintiffs, contained a recital that the extension was to run from the twenty-third day of September, 1921, this was an admission that the time limited by the original lease, for beginning of work by lessee, had expired at that date; and was an implied admission that the showing of "satisfactory title," necessary to start time running on the original time limit for beginning of work by lessee, had been completed at least ninety days before September 23, 1921.
It was provided in the lease as follows: "In the event lessee shall fail to fully perform any covenant or condition hereof on his part to be kept, performed or observed, and *Page 285 except as hereinafter provided, and the lessors desire to enforce a forfeiture on account of such failure to perform and observe, the lessors shall give the lessee notice in writing of such failure to perform and observe, and of lessors' desire to enforce a forfeiture by reason thereof, and if within thirty (30) days thereafter lessee has not remedied the breach so complained of, or performed and observed, the requirement the breach of which is so complained of, then the lessee shall, at lessors' option, forfeit all rights in and to this lease, and this lease shall terminate and be at an end. . . ."
The lease also contained an agreement concerning a possible extension of the lease in terms as follows: "It is further agreed, however, that the time for the commencement of such work may be extended at the election of the lessee for an additional period, not to exceed three (3) months, in consideration for which extension the lessee shall pay the lessors the sum of ten ($10.00) dollars per month per lot. It is further mutually agreed between the parties hereto that if drilling operations for oil are not actually started on the premises within the said three (3) months, or said extended period of three (3) months additional time above mentioned, this lease and all the terms herein shall become null and void with no further effect on the lessors hereto."
It will be noted that the agreement subsequently made for extension of the lease was for a period of six months, and was not merely limited to the originally contemplated extension of three months. The extension agreement says: "And whereas, the final date allowed for commencing drilling operations under said lease was September 23, 1921, and whereas, Henry R. Dabney is desirous of securing an extension of said lease for an additional period, not to exceed six months from September 23, 1921, under the same terms and conditions and rentals as specified under the lease above mentioned, . . . we hereby renew said lease and grant an extension of the time in which drilling operations are to be commenced, up to and including the 23d day of March, 1922; it being understood and agreed by all of the parties hereto that the lease above mentioned is to continue and hold in force the same as the original time with regard to all other terms and conditions mentioned therein and stipulated therein to be performed, including the rental and royalty to be paid." *Page 286
The principal contention and ground of appeal by appellant is that by reason of the terms of the original lease, together with the terms of the extension agreement, the right of the lessors to enforce forfeiture and termination of the lease on account of the failure to commence drilling operations on or before March 23, 1922, is conditioned upon the giving of notice of the desire of lessors to enforce such forfeiture, just the same as if, without any agreement of extension of the lease, the lessors had attempted to enforce the forfeiture by reason of failure to begin drilling operations within the period of time specified in the original lease. Respondents, on the other hand, contend that by the terms of the extension agreement the lease on and after March 23, 1922, became null and void by operation of the extension agreement itself; and further contend that their interpretation of the lease and extension agreement is confirmed and made certain by reason of a written offer addressed to J.H. Stewart, by means of which appellant applied for and obtained the extension agreement. For the purpose of establishing their interpretation of the extension agreement, appellants offered in evidence and the court, over the objection of respondent, received in evidence the said written offer, together with testimony explaining the circumstances under which said written offer was made. From this evidence it appears that J.H. Stewart, who was one of the lessors, not only represented the lessors in the negotiation for said extension agreement, but also was paid a sum of money by appellant to assist appellant in obtaining such extension. In this written offer, dated October 4, 1921, appellant said: "It is further agreed that the provision in the parent lease regarding the `failure to fully perform any covenant or condition to be kept' under said lease by me shall have no effect as to the final date under which drilling operations are to be started under said extension. In other words, on March 23, 1922, if drilling operations have not been started, this lease or extension of lease is to be null and void, without privilege of a period of grace or without any recourse, and I agree to deliver a quitclaim deed on said date to said demised property without any notice from the landowners if I have not started drilling operations by that time."
Stewart used this written offer in his negotiations with the lessors, and they all saw it before they signed the extension *Page 287 agreement. In order to more conveniently distribute this information to the numerous lessors, appellant gave Stewart several copies of said written offer. Stewart testified that, based on this offer, he and the other owners granted the extension. Appellant objected to the question calling for this statement, as a question calling for the conclusion of the witness. Technically, this was a good objection, at least as to the other owners, but the circumstances so strongly support the "conclusion" that the error in the court's ruling becomes unimportant.
[2] Appellant contends that the admission in evidence of said written offer was directly in violation of section 1625 of the Civil Code, which reads as follows: "The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument." As illustrating the point, appellant cites, among other cases, Newhall v. Burns, 31 Cal.App. 549 [161 P. 14], wherein this court said: "Where an agreement extending time for making payment of an installment of the purchase price of real property expressly provided that the agreement was subject to all of the terms, covenants, and conditions of the original contract of sale, such provision had the effect of carrying into such agreement all of the terms and conditions of the original contract, including the provision that time was of the essence of the contract, and no express declaration in such agreement to that effect was essential." So here it is argued that as the extension agreement, after providing for the time to which the lease was extended, provided that the lease was to continue in force "the same as the original time with regard to all other terms and conditions mentioned therein and stipulated therein to be performed," the condition and requirement of notice preceding forfeiture, as stated in the original lease, is equally applicable to the term as extended.
While the general rule is as stated in section 1625 of the Civil Code and in the decisions cited by appellant, their application to the present case is controlled by the fact that the written offer or application for extension of the lease, and the written extension itself, when executed under the circumstances to which I have referred, are but parts of one single contractual transaction, each of them being and by *Page 288 the parties intended to be part of the agreement. The written offer signed by appellant directly and specifically declared a waiver by appellant of his right to notice of termination of the lease in case he failed to start drilling operations within the time limited. This waiver should control in the interpretation of the more general terms of the extension agreement as signed by the lessors. The decision on this point should be governed, and in my opinion it is governed, by the rule that several contracts relating to the same matter, between the same parties, and made as parts of substantially one transaction, are to be taken together. As was said in Torrey v. Shea, 29 Cal.App. 313, 316 [155 P. 820], the question as to whether or not several instruments between the same parties were contemporaneously executed and intended by the parties thereto to cover a single transaction, oftentimes cannot be ascertained from an inspection of the instruments themselves; "and consequently, if the intention of the parties be either not expressed or doubtfully expressed, resort may be had to extrinsic evidence which will show the circumstances under which the several instruments were made, for the purpose of ascertaining the intention of the parties concerning the scope and effect of the several instruments." See, also, Greathouse v. Daleno, 57 Cal.App. 187 [206 P. 1019]; Spotton v. Dyer, 42 Cal.App. 585, 588 [184 P. 23]; Merkeley v. Fish, 179 Cal. 748, 754 [178 P. 945].
For the reasons above stated, I concur in the judgment of affirmance herein.
Houser, J., concurred. *Page 289