Plaintiffs in error have filed a petition for rehearing in this cause, in which it is strenuously insisted that the court, in the opinion handed down: (1) Overlooked the issues presented by the pleadings; (2) overlooked the error complained of in the rejection of competent evidence offered at the trial of the cause; (3) overlooked the question submitted of the right of the trial court to take from the jury the decision of questions of fact; (4) overlooked the terms of the contract sued upon. In the brief and in oral argument counsel for plaintiffs in error earnestly insists that the defendants in error were not entitled to recover the money deposited with the plaintiff in error bank, arguing with much plausibility that the provisions contained in the contract as to the deposit of the $1,500 earnest money and its application by the bank are entirely independent of the provisions *Page 115 in said contract relating to the examination by the attorney of the defendants ill error of the abstracts of title to the land involved. The provisions in the contract relative to the deposit of the $1,500 are as follows:
"It is further agreed and undertsood that the second parties shall begin actual work in sinking a well upon a portion of said land within sixty days from the date said abstracts are furnished by the first party to the parties as herein agreed upon and continues said work in sinking wells until two wells have been sunk, at a depth of not less than sixteen hundred feet, and at least two wells shall be put down and drilled upon said land at a depth of not less than sixteen hundred feet within six months from the date of this lease become effective unless oil is found in paying quantities at less depth than sixteen hundred feet.
"It is further agreed that the said second parties shall immediately deposit in the First National Bank of Waurika, Oklahoma, fifteen hundred dollars ($1,500.00) cash at the time of signing this contract, together with this contract, which shall be considered placed in said bank as earnest money.
"It is especially agreed and understood that in the event said second parties shall fail to comply with the provisions of this contract in beginning work, as agreed on herein, within sixty days as provided for herein then the said fifteen hundred dollars ($1,500.00) shall be paid to said first party as his damages agreed upon as liquidated damages without any further notice or order to or from said second parties."
Counsel for plaintiffs in error with much ingenuity and ability argues that this provision of the contract was not dependent upon the opinion of the attorney upon the abstracts of title to said land, but that under the terms of the contract the defendants in error bound themselves to commence within 60 days the drilling of wells upon the lands involved, nothwithstanding their title thereto under the lease contract might be wholly defective, and that they bound themselves in the event of their failure so to drill to pay to the plaintiff in error Kelly the sum of $1.500.
Counsel for plaintiffs in error, however, overlooks the provision contained in the contract immediately preceding the provisions above quoted. It is as follows:
"The said first party agrees to furnish a complete abstract to said second parties to the above land within two weeks from this date and the same is to be submitted to A.L. Zinser, attorney of said second parties, who shall pass upon the title to said land. In the event the attorney of said parties shall approve said title, then this lease shall take effect from the date the abstracts were furnished by the said first party to said second parties."
Counsel for plaintiffs in error speciously argues that all the defendant in error Kelly was required to do under this provision of the contract was to furnish a complete abstract, and that the only effect of the approval of the attorney of defendants in error of said abstracts was to fix the date of the commencement of the term of the lease. It is the duty of the court to give a reasonable construction to all the terms of a contract and not to construe the terms thereof so as to lead to absurd conclusions. As counsel for plaintiffs in error would construe this contract, all that the plaintiff in error Kelly, was required to do was to furnish complete abstracts. Counsel omits to state in his brief and argument what the defendants in error were to do with these abstracts when they had been passed upon by their attorney and what object there might be in requiring abstracts of title. It seems clear to us that the purpose of the provisions of the contract above quoted, requiring Kelly to furnish abstracts of title to be passed upon by the attorney of defendants in error, and reciting that in the event of his approval of the title the contract should take effect as of the date the abstracts were furnished, was to stipulate as to whether or not the contract should in fact take effect. The only reasonable conclusion that can be reached from the language used in the contract is, in the event of the approval of the abstracts, the contract should be effectual and binding, and in the event of disapproval thereof the contract should not take effect, or, as said in the syllabus of the opinion, "that the mutual obligations of the parties should accrue only in the case of the approval of the title."
The contract as drawn depended for its taking effect upon the approval of the abstracts of title by the attorney of defendants in error, and this approval constituted a condition precedent which it was perfectly competent for the parties to the contract to agree upon. 13 C. J. 564, § 532. The condition precedent never having occurred, the contracts never took effect, and the defendants in error violated no provisions of the contract in failing to commerce drilling.
Counsel for plaintiffs in error contends that the trial court committed error in rejecting competent evidence which was overlooked by this court. Both in the brief upon the petition for rehearing, at the oral argument, and in the supplemental brief, counsel contends that the court, in its opinion, made a new contract for the parties. It seems to *Page 116 us from the argument of counsel that plaintiffs in error were attempting at the trial of this cause, and counsel is now attempting, to substitute a new contract for the one actually signed by the parties. The evidence rejected was fully discussed in the opinion. The plaintiffs in error offered to show oral conversations between plaintiff in error Kelly and defendants in error, both before and at the time the contract was drawn, as to the character of the title to the lands and as to what would be done by Kelly in perfecting title when defendants in error were ready to commence drilling.
It is argued by counsel for plaintiffs in error that this evidence was competent to show that defendants in error perfectly understood that the lease covered surplus Indian land sold by the government upon partial payments, and that it was competent as explaining what was to be done by the attorney for defendants in error in examining the abstracts submitted by Kelly. Counsel for plaintiffs in error contends that all the attorney was required to do under the terms of the contract was to pass upon the completeness of the abstracts of title, and that if the abstracts were complete, whether or not they showed title, the contract took effect. We have no doubt that it was perfectly competent for Kelly and defendants in error to so contract. Had they done so, there would be great force in counsel's contention that defendants in error were not entitled to recover. However, they did not so contract. The contract provides, "in the event the attorney of said parties shall approve said title," not the abstracts. The contract does not provide that the attorney should pass only upon the abstracts, but it provides, "who shall pass upon the title to said land." Counsel, in his earnest desire to secure for his client his pound of flesh, seeks to interpolate terms into the contract which are not found there, and seeks to substitute an entirely different agreement from the one written. Since "it is not so denominated in the bond," we cannot follow the precedent laid down by the learned Justice Portia and decree the forfeiture demanded.
The evidence offered by plaintiffs in error and rejected was clearly incompetent as tending to modify the terms of a written contract by parol, and upon the issue of whether or not the attorney for defendants in error acted in good faith in examining the abstracts it was wholly immaterial, since it shed no light upon the motives that may have actuated the attorney for defendants in error.
The trial court permitted the plaintiffs in error, upon cross-examination of the attorney for defendants in error, to inquire into his reasons for rejecting the title. Plaintiffs in error produced and offered no evidence tending to show that the opinion upon the abstracts given by the attorney for defendants in error was not given in good faith. They did not even attempt to show that the opinion was wrong, and that the title was good.
This being the state of the case, there being no competent evidence before the jury to rebut the presumption that the attorney for defendants in error in examining the abstracts acted in good faith, there was nothing before the jury to show that the tentative contract between defendants in error and Kelly took effect, and there was therefore no issue to be submitted to the jury.
We have given the petition for rehearing more extended consideration than the importance of the questions involved warrants, solely because of the zeal and earnestness of counsel in his contention that the court in the opinion made a new contract for the parties.
The petition for rehearing is denied.