The contract does not by express terms or necessary implication require the defendants to remove all the clay within 15 years. It is merely a lease whereby plaintiff leases certain property to defendants for a term of 15 years. It is agreed that defendants may use the property for digging and removing clay for the manufacture of bricks. Defendants agreed to commence digging clay at certain times (in 1922 and 1923). The controversy arises over a provision that defendants "will dig said clay continuously from said dates until said clay is fully removed." Nothing is said as to how much clay must be removed in any month or any year. The lease merely provides that "if" the clay is all dug during the 15 years, the lease shall be cancelled on the date that all day has been excavated. Obviously, the term ended at the expiration of 15 years. Whatever clay remained continued to be the property of plaintiff. The defendants stopped digging the clay in 1929 and did not resume until August, 1936. The parties themselves have placed their own construction on the meaning of "continuously." No objection was voiced to the discontinuance, and, by agreement, in 1936 digging was resumed at a different rate of compensation. If defendants breached a covenant in 1929 to dig "continuously," it is now too late for plaintiff to maintain suit for damages on that account.
We should not attempt to read into the contract a covenant which is not there. Judgment for defendants should be affirmed, with costs.
BUSHNELL and WIEST, JJ., concurred with BOYLES, J. *Page 74