I find myself unable to agree to a reversal of this case. With profound deference to the views of my associates, I think the case should be affirmed for these reasons: Briefly, the escrow agreement provided for its delivery to the bank concurrently with the delivery of the assignment of the lease. The escrow agreement made the commencement of actual drilling on a certain tract of land within 15 days from its date, to wit, June 1st, the condition to the delivery of the assignment. As I understand the record, neither the assignment nor the escrow agreement was delivered to the bank until about July 1st. After they were deposited in the bank, and about July 8th, the defendant in error commenced the actual drilling of the well required by the escrow agreement. The time limit in the escrow agreement expired before either the assignment or the escrow agreement was deposited in the bank. During the latter part of June and near the first of July, and after the 15 days had expired, Wagner, one of the plaintiffs in error (at that time engaged in *Page 6 the supply business), actually sold some of the material used by the defendant in error in commencing and drilling the well. Wagner knew at the time he sold the material that it would be used in connection with the drilling of the well. I think the plaintiffs in error induced the defendant in error to believe that they had waived the time limit prescribed in the escrow agreement — in fact, it seems all parties proceeded upon that theory. No waiver was alleged by defendant in error, as plaintiff below, and while it is true that a waiver should be pleaded, the defendant in error at the close of all the evidence in the trial court moved the court to consider its petition amended to conform to the facts. While there was no express ruling on that motion, the findings of the trial judge show that he treated the pleadings as amended so as to allege a waiver. The trial judge found that the assignment and escrow agreement were delivered to the bank about July 1st, and that defendant in error commenced actual drilling on the well about the 8th of July. He found the facts in favor of the defendant in error and entered a decree in its favor. I think the findings by the trial judge conclusively show that he treated the pleadings as amended to conform to the evidence, as moved for by defendant in error. No one seems to have been taken by surprise during the trial. The time stipulated for performance of a condition prescribed in an escrow contract may be waived by conduct as well as by words. 16 Cyc. 578. I think the equities are with the defendant in error and that the judgment of the trial court should be affirmed.