Counsel have presented a petition for rehearing, in which it is said that through their failure to make clear their points the court failed to grasp their contentions, and hence reached an erroneous conclusion.
Learned counsel are very considerate in assuming responsibility, but we may say that they can never be justly charged with such shortcomings. We may say, too, that though we did not discuss all of the points and law presented in the original briefs we think we grasped the force of the points urged, and of the law stated in support thereof.
We did not deem it necessary in our original opinion to consider all of the points urged in the opening brief of appellant, because of the concession made in its reply brief to the effect that if the stipulations contained in defendants' exhibit D requiring Dunfee to perform sixty shifts were binding on appellant that the lease might be lawfully canceled. In fact, we would probably have taken that position had there been no such concession.
Counsel say in their petition:
"* * * We could not be obligated under defendants' exhibit D until such time as we acquired Dunfee's interest in defendants' exhibit D, and this interest could not be acquired by us under the terms of the contract until we paid Dunfee $40,000.00. We submit this statement is plain and not difficult to comprehend. In *Page 101 plaintiff's exhibit 6, we agreed to mine and develop the property and nothing more. Therefore until such time as we connected ourselves with Dunfee's title to defendants' exhibit D, our contract was that we should mine and develop. We were not obligated to perform the sixty shifts until we stepped into Dunfee's shoes and acquired, by paying him $40,000.00, his lease and option which he had and held from the French Company."
We do not think this contention difficult to grasp, and it is equally easily answered. In fact, had we made our position clear in our original opinion, we doubt if it would have been again challenged.
Bearing in mind that plaintiff's exhibit 6 is the original contract (lease and option) between Dunfee and defendant corporation, and that it imposed upon Dunfee the performance of sixty shifts per month, coupled with the condition that for failure to comply with such condition that the company (lessor and optionor), at its option, might declare such contract, and the rights of Dunfee thereunder, forfeited in case of failure to perform the sixty shifts, it would seem that no one could strenuously urge that had Dunfee continued to hold the lease and option, but failed to do the sixty shifts monthly, his rights could not have been cut off by the defendant company. Holding as we did that the plaintiff was an assignee of Dunfee's interest in the lease and option, and as such took exclusive possession of the property — considering itself as such assignee during the entire life of the lease and option, and until nine months after the testimony in this case was taken — it was certainly charged with the duty of complying with the terms, not only of exhibit D but of exhibit 6 as well, as we sought to show in the original opinion.
The plaintiff knew that someone had to do the work. It was notified to do it, and that for failure to comply its rights would be cut off. There is no intimation that it then took the position that it was not charged with the burden of doing the work. It does not appear that it demanded of Dunfee that he perform it. Every circumstance in connection with the case tends to show *Page 102 that the plaintiff understood that it must do the work. On what theory did it seek and receive permission of defendant company on one or more occasions to temporarily cease operations? Again we say we do not think the question seriously debatable.
The petition is denied.