The cross-petitioners in error contend that important issues involved in the appeal, to wit, the validity of three oil and gas mining leases, were not determined by the opinion in this case in compliance with the constitutional requirement, in that the issues submitted by the cross-petitioners in error were neither discussed nor determined in the opinion, and that the opinion of September 9, 1930, refers to the contentions of the cross-petitioners in error only as follows:
"A careful reading of the record will disclose that there is an abundance of evidence to support the findings of the court and it is a well-settled rule in this jurisdiction that in an equitable proceeding the judgment of the trial court will not be disturbed unless it is against the clear weight of the evidence. The judgment of trial court is affirmed."
The cross-petitioners in error in their second petition for rehearing submit the following:
"If any one of the following contentions of plaintiffs in error be sound as a matter of law, the leases should be canceled.
"1. They are voidable because there was a relation of trust and confidence between the makers and John Willmott and the makers had no disinterested advice.
"2. A partial consideration at least for the execution of the leases was the agreement of John Willmott to bring suit for the Indians. This was not done. There was a partial failure of consideration.
"3. At the time he made the agreement, John Willmott did not intend to bring the suit. If he did not intend to bring the suit, he obtained the lease by fraud, for fraud includes making a promise without intent to perform. Sections 4996 and 4997, C. O. S. 1921; Haggerty v. Key. 100 Okla. 238 at 241, *Page 172 229 P. 548; Wilson v. Rentie, 124 Okla. 37, 254 P. 64."
— and says:
"Plaintiffs in error are entitled to have the court say whether the leases should be canceled because of any one of the three grounds above stated."
Before this court should consider the questions of law as stated in the contentions quoted, it is necessary that those contentions as to the law be based upon facts shown by the record.
The trial court sitting in equity heard the oral testimony of the witnesses, observed their intelligence, capacity, manner, characteristics, and their fairness or bias. That court had the opportunity to judge the value of the testimony and did judge it, and found therefrom that the leases were freely and voluntarily made, that there was no fraud in fact or by implication, that the lessors understood their rights and that there was a fair and adequate consideration for the leases.
The preponderance of the evidence, as shown by the record, is against the facts necessary to support the contentions of law as submitted by the cross-petitioners in error. As we said in the opinion of September 9, 1930, the judgment of the trial court in an equitable proceeding will not be disturbed unless it is against the clear weight of the evidence. The judgment of the trial court in this case is not against the clear weight of the evidence.
We do not consider it necessary to discuss what the effect of the contentions made would be, had they been supported by the evidence in the case. Suffice it to say that they were not supported by a preponderance of the evidence in the case, and, after a careful review of the record, the second petition for rehearing is denied.
CLARK, V. C. J., and CULLISON, SWINDALL, McNEILL, and KORNEGAY, JJ., concur. LESTER, C. J., and RILEY, J., concur in conclusion. HEFNER, J., not participating.