This action was commenced by the defendants in error, John Sealy, E.R. Brown, R. Waverly Smith, E.E. Plumly, and George C. Greer, as trustees for the Magnolia Petroleum Company, hereinafter called the plaintiffs, against the plaintiffs in error, Chas. M. Prowant, Eva S. Prowant, Walter Brown, Earle T. Miller, Henry N. Greis and Burke-Hoffeld Oil Company, hereinafter called defendants, seeking to enjoin the dedefendants from interfering with plaintiffs' possession of the land in controversy under an oil and gas mining lease. At the same time a similar action was commenced by the Fortuna Oil Company, as plaintiff, against Morton G. Custer et al., as defendants.
This controversy arose out of the following circumstances: On March 12, 1914, Chas. M. Prowant and wife executed to A.P. Crockett, an attorney of Oklahoma City, an oil and gas lease on the premises involved in the action first above mentioned, which was subsequently assigned by Crockett to the Magnolia Petroleam Company. This company made a location for well No. 1 on this lease in December, 1916. On the same date the Prowant lease was executed Morton G. Custer and wife gave Crockett a similar lease on the premises involved in the second action. This lease was subsequently assigned to the Fortuna Oil Company, which, at the time of the institution of this suit, had made its location for well No. 1 on said lease. Later these companies made additional locations on the leases, so that on March 12, 1917, there were two drilling wells on each lease. On December 27, 1916, Chas. M. Prowant and wife executed an option contract to Walter Brown, for a cash consideration of $1,000, giving the said Brown an option to purchase an oil and gas lease on his land on or before March 12, 1917, for a bonus of $20,000. On January 31, 1917, Morton G. Custer and wife made a similar contract with the said Brown and Earle T. Miller for a bonus of $25,000. It was upon receiving notice of the execution of these option contracts, that the plaintiffs in each of the above cases, who were at the time engaged in drilling on both said leases, brought their actions to enjoin the lessors and Brown and Miller from interfering with the plaintiffs' possession of the premises and to cancel the option contracts as clouds on plaintiffs' titles. The trial court rendered judgment for plaintiffs, from which the defendants have appealed to this court.
The material facts in the cases are substantially the same, but they involve different tracts of land and different parties. During the trial, by agreement, the evidence in one case was considered evidence in the other ease so far as applicable, so the decision of the first named case will be controlling in the second.
The material facts covering the negotiations between the original parties to the lease are that sometime in February or March, 1914, Crockett began negotiations with the defendants in these eases and other landowners in what is hereinafter designated as the Yale field, which negotiations resulted in Crockett and fifteen of such landowners reaching an agreement by which oil and gas leases were to be given Crockett on their lands in this field in consideration of Crockett's proceeding to drill a test well to a depth of three thousand feet, unless oil or gas was found, or the Bartlesville sand reached, at a lesser depth. At the time of the negotiations the territory in which the lands were situated was approximately fifteen miles from the nearest producing well and was what is commonly denominated "wild-cat" territory. Prior to this time shallow wells had been drilled in the Yale field, but without discovering oil or gas in paying quantities, and all other prospectors who had secured leases on these particular lands had abandoned them. Several dry holes had been drilled in the immediate vicinity of the leases taken by Crockett, which had, in a measure, apparently condemned that section for oil and gas purposes. Under these circumstances there had been discussion among the landowners, who subsequently joined in executing the block of leases to Crockett leading to an implied understanding between them, if not an express agreement, to the effect that they would not lease again without receiving guarantees of the drilling of a well that would test the field. Crockett appears to have had an abiding faith that oil would be discovered in the field and the prospective lessors, being impressed with his earnestness in this respect, entered into an agreement with him for the drilling of a test well. Under this agreement Crockett executed his bond in the sum of $2,500, which was to be forfeited to the lessors as liquidated damages in the event he failed to *Page 246 drill such test well in accordance with his agreement. The leases executed by the fifteen lessors, who entered into the contract with Crockett for the drilling of the test well, were deposited in escrow in the First National Bank of Yale, to be delivered to Crockett upon the commencement of the test well. In the briefs this contract is denominated the "escrow agreement." Under it Crockett further obligated himself, and the parties whom he represented, to commence within sixty days from the 20th day of February, 1914, the drilling of a test well upon some one of the tracts of the fifteen lessors, and to prosecute the drilling continuously in good faith until the test reached three thousand feet, unless paying sand was found at a lesser depth. It was further stipulated in the agreement that the test well was to be completed within one year from the date of its commencement. This well was begun within the specified time, and, in accordance with the terms of the escrow agreement, the leases executed by the fifteen lessors, among which were the two involved in these cases, were delivered by the bank to Crockett. The well was completed within the year prescribed, oil in paying quantities being found at a depth slightly in excess of three thousand feet. All the leases are substantially identical, the material parts of the Prowant lease being as follows:
"This Agreement, Made and entered into this 11 day of March, 1914, by and between Chas. M. Prowant and Eva S. Prowant, husband and wife, of Payne County, State of Oklahoma, lessors, and A.P. Crockett, of Oklahoma City, State of Oklahoma, lessee;
"Witnesseth: That the lessors, in consideration of the sum of one dollar ($1.00), to them in hand, well and truly paid by the lessee, receipt of which is hereby acknowledged, do hereby grant, demise, lease and let unto the lessee, his successors, heirs and assigns, all of the oil and gas in and under the following described tract of land, and also the said tract of land for the purpose and with the exclusive right of entering upon and operating thereon and removing therefrom said oil and gas and of laying pipe lines, building tanks, powers, stations, and structures thereon for producing, extracting, storing and disposing of said products, and with the right to use oil, gas and water therefrom, and all rights and privileges necessary or convenient for such operations; also the right to remove at any time all property, pipes, casing, materials, buildings and improvements placed or erected in or upon said land by the lessee, said land being all of that certain tract of land situate in Payne county, state of Oklahoma, described as follows, to wit:
"The south one-half of the northwest one-quarter of section 6, township 19 north, range 6 east, of the Indian Meridian, containing 80 acres more or less.
"To have and to hold the same for and during the term ofthree years from the date hereof, and as much longer thereafteras oil or gas is found therein, or said premises developed oroperated.
* * * * * * *
"If a well is not commenced on said premises within oneyear from the date hereof, this lease shall become null andvoid, unless the lessee shall pay or tender to the lessors arental of $2.00 per acre quarterly in advance for suchadditional one year such commencement is delayed from timeabove mentioned for the commencement of said well, until a wellis commenced on said land. It is expressly agreed that theright to so extend and continue this lease is fully paid for bythe consideration above mentioned, and that the said payment ortender, when made, shall fully and completely extend this leasefrom time to time until a well is commenced. The drilling of aproducing well on said premises shall operate as a fullliquidation of all rentals due or payable under this provisionduring the remainder of the term of this lease.
"The completion of drilling operations which result in a dry hole or a well not producing oil or gas in paying quantities shall be in lieu of all rentals accruing from and after the date of the commencement of said operations; for a period expiring one year after the termination of said operations, and this lease shall be in full force and effect for said time as fully as if said rentals had been paid or a producing well completed." (Emphasis ours.)
It will be noted that under the second italicized clause of the lease the lessee is obligated to commence a well upon the tract of land covered by the lease or pay rental at the rate of $2.00 per acre, quarterly in advance, for each year the commencement of a well is delayed. The clause of the lease in which this provision occurs is clear and unambiguous and, standing alone, clearly does not require the completion of a well within one year or the payment of rentals, but only requires the commencement of a well within one year, or the payment of rentals for delay, and in this respect the lease is materially different from oil and gas leases that require the completion of a well within the designated time. But this clause, standing alone, does not specify for how long a period of time the lessee shall have the option to delay drilling by the payment of the rentals therein prescribed. This brings us to a consideration of another clause in the lease which expresses the agreement of the parties in this respect. This clause appears immediately after the granting clause and the description of the land covered by the lease. We will *Page 247 designate it, as do the parties, "the habendum clause."
For the purposes of analysis and discussion counsel for defendants have subdivided this clause into four parts, as follows:
(1) To have and to hold the same for and during the term of three years from the date hereof; (2) and as much longer thereafter as oil or gas is found therein; (3) or said premises developed; (4) or operated.
Counsel for defendants say that if only clause 1 had been used the lease would have expired on March 10, 1917, even though it contained oil wells which were then being operated; that a definite term of three years would have been thereby fixed without any privilege of extension; and, therefore, clauses 2, 3, and 4 were intended to enlarge or extend the term provided the conditions described by said clauses came into existence. Thus far there can be no room for differences of opinion. Counsel then say: "Do the words in clause one (meaning clause 2) 'and as much longer thereafter as oil or gas is found therein' extend the life of the lease unless oil is found within the three years? Plainly not. And this so plain that argument is useless." And we agree that counsel have also correctly stated the meaning of the words last referred to — that is, if the lessee prospects for oil and finds oil or gas on the leased premises before the expiration of the three-year period, the lease is extended beyond that term as long as oil or gas is found therein, provided, of course, that the oil or gas so found is run from the lease, as contemplated by the parties. With reference to clause 3, counsel for defendants contend that unless the premises are developed within the three-year period the lease is not extended and that by "developed" is meant "unfolded, laid open, disclosed;" in other words that oil or gas has been found and extracted during said term. As to clause 4 they say that the words "or operated" mean that a well must have been drilled, oil or gas found, and the work of extracting the same must have been carried on during the three-year term in order to extend the lease. It will thus be seen that counsel give substantially and practically the same meaning to clauses 3 and 4 as they do to clause 2. The habendum clause contains two provisions or conditions under which the lease may be extended after three years, which we think are properly divisible as follows: "As much longer thereafter (the three-year period) as" (1) "oil or gas is found therein, or" (2) "said premises developed or operated."
Leaving out of the case for the present the intent and understanding of the parties as found by the trial judge from the evidence adduced at the hearing, let us examine the entire lease or contract in the light of the well known rules of construction. Where a written contract is complete in itself and the same, viewed in its entirety, is unambiguous, its language is the only legitimate evidence of what the parties intended by it; the intention of the parties is to be gathered solely from the words used; and courts will not resort to construction, but will enforce the contract according to its terms. Elliott on Contracts, sec. 1510; 13 Corpus Juris, 530. But this rule has no application here, for the reason that the contract is somewhat ambiguous, and it is our duty, therefore, to seek to determine, by construction, the intent of the parties as expressed by the words employed by them in their contract, considering the instrument as a whole. Individual clauses and particular words must be considered in connection with the rest of the agreement, and all parts of the instrument and every word in it will, if possible, be given effect. 13 Corpus Juris, 525, 486; Elliott on Contracts, sec. 1514; City of Tecumseh v. Burns et al., 30 Okla. 503,120 P. 270; Brown et al. v. Coppadge et al., 54 Okla. 88, 153 P. 817; Union Trust Co. et al. v. Shelby Downard Asphalt Co., 55 Okla. 251,156 P. 903; Hanna v. Mosher et al., 22 Okla. 501,98 P. 358; Mobile County v. Linch (Ala.) 73 So. 423; State ex rel. Davis v. Mortensen, 69 Neb. 376, 95 N.W. 831; Yellow Jack Mining Co. v. Tegarden Bros., 104 Ark. 573, 149 S.W. 518; Doniphan K. S. R. Co. v. Missouri N. A. R. Co.,104 Ark. 475, 149 S.W. 60: Mathews v. Modern Woodman of America, 236 Mo. 326, 139 S.W. 151; Jewel Tea Co. v. Watkins (Colo.) 145 P. 719; Savage v. Smith, 170 Cal. 472, 150 P. 353; Withington v. Gypsy Oil Co., 68 Oklahoma, 172 P. 634; Comptograph Co. v. Burroughs Adding Mach. Co. (Iowa) 159 N.W. 465; R. F. Conway Co. v. City of Chicago, 274 Ill. 369, 113 N.E. 703; Canadian Northern R. Co. v. Northern Mississippi R. Co., 209 Fed. 758, 126 C. C. A. 482; Rushing et al. v. Manhattan Life Ins. Co., of New York, 224 Fed. 74, 139 C. C. A. 520.
As so often stated by this and other courts, the cardinal rule of construction is to ascertain what the parties intended and when that intention is found it prevails over verbal inaccuracies, inapt expressions, and the dry words of the stipulations; and it is our duty as far as possible to place ourselves in the position of the parties when their minds met upon the terms of the agreement, and upon a full consideration of the writing itself, its purposes and the circumstances surrounding the transaction to endeavor to ascertain upon what sense or meaning of the terms used their minds actually met. Elliott on Contracts, *Page 248 sec. 1508; Parsons on Contracts (9th Ed.) vol. 2, p. 657; Page on Contracts, sec. 1123; Beach on Contracts, secs. 712, 719; Withington v. Gypsy Oil Co., supra; Kansas City Bridge Co. v. Lindsay Bridge Co., 32 Okla. 31, 121 P. 639; Union Trust Co. v. Shelby Downward Asphalt Co., supra; Lamore Gas Oil Co. v. Doop Fratter, 39 Okla. 427, 135 P. 392; Nelson v. Reynolds et al., 59 Okla. 168, 158 P. 301; Brown v. Coppadge et al., supra; 5 Ruling Case Law, No. 239.
Article 2, ch. 12, of our Code contains provisions for the interpretation of contracts, which, in the main, are the well known and well settled rules existing prior to the adoption of the Code. Among these, and one which we think is particularly applicable to the contract under consideration, and therefore, cannot be ignored, is section 951, which is as follows:
"The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the others."
Taking the language "premises developed or operated" in the habendum clause, which, as above stated, is somewhat obscure, what is the proper meaning to be ascribed thereto, viewing the instrument as a whole and measured by section 951, supra? Obviously these words must be construed to mean, either, as contended by the defendants, that within the three-year term oil or gas must be found in the premises and the oil or gas so found be in the process of being taken therefrom, or, as contended by plaintiffs, that the three-year term is extended if drilling operations have been commenced during said term and are still in progress at the expiration thereof. Now, to give the words the construction contended for by defendants would not give them any field for operation, for the very conditions to which they would attach and under which they would be effective, if thus construed, are fully covered by the previous clause wherein it is provided that the lessee is to hold the premises "as long thereafter (the three-year term) as oil or gas is found therein (in the premises.)" We are not authorized to presume that the parties to the contract employed the words uselessly, but must presume that they were used designedly and for some purpose; otherwise they would not have been incorporated in the agreement. Certainly the language in the second clause was intended to apply to different circumstances from those to which the language in the first clause is applicable. The rule that effect should be given, if possible, to all parts of a contract is generally applied by all the courts, and we cannot reject this part of the contract if the words will admit of any reasonable and practicable construction that will sustain them as an essential part of the agreement. As stated in State ex rel. Davis v. Mortensen, supra, a construction that will completely emasculate a clause of a contract will not be adopted, if any other reasonable construction is admissible. Nor will any substantive clause be allowed to perish unless unsurmountable obstacles stand in the way. Matthews v. Modern Woodman of America, supra; Parsons on Contracts (7th Ed.) 633. Section 951 of our Code, supra, is practically identical with section 1641 of Kerr's California Civil Code, under which, in Savage v. Smith, supra, the court, in the seventh paragraph of the syllabus, held:
"Under Civ. Code. sec. 1641, providing that the whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other, an interpretation of a clause, even if not clearly obvious, would have to be adopted in preference to a construction which would deny all meaning to it.
In Rushing et al. v. Manhattan Life Ins. Co., of New York, supra, the Circuit Court of Appeals of the Eighth Circuit, in the body of an opinion by Judge Sanborn, say:
"The sole purpose of the interpretation of a contract is to ascertain the intention of the parties when they made it. If possible every part of a contract must be so construed as to be consistent with every other part and to have effect. It is only when the parts of a contract are so radically repugnant that there is no rational construction that will render them effective and accordant that any part must perish. And the intention of the parties must be deduced, not from specific provisions or fragmentary parts of the agreement, but from the entire contract, because the intent is not evidenced by any part or stipulation of it, nor by the contract without any part or provision, but by every part and term so construed, if possible, as to be consistent with every other part and with the entire agreement."
It necessarily follows that we must give the words the only other interpretation and construction practicable and of which they are reasonably susceptible; namely, that such words were used in the sense of "being developed or being operated;" or in other words, they were intended to mean that if drilling operations were commenced on the premises within the three years for the purpose of discovering oil or gas and were still being prosecuted in good faith at the expiration of the three-year period, the term was thereby enlarged or extended during the continuance of such drilling operations, or in *Page 249 the case of the discovery of oil or gas, as long as the same was run. This construction, it seems to us, is the only one that will give any effect to the language used. It is fair and reasonable and is consistent with the whole agreement, particularly with that related part thereof wherein provision is made for the commencement of a well within one year or the payment of rentals for delay in the commencement thereof.
We have not overlooked the rule stated in the cases cited by counsel that oil and gas leases will be construed most strongly against the lessee who prepared the lease and to promote development, but this rule does not mean that courts should construe the lease in such a way as not to give any effect to the language employed to express the terms agreed upon by the contracting parties. Moreover, it appears from the facts in this case that the lessors would more quickly secure the development of their lands by the plaintiffs who commenced the drilling of a well within the time provided by the lease by permitting said plaintiffs to continue their drilling operations until the test was completed than they would by having the test made by the defendants who could not possibly commence drilling operations until after the expiration of the three-year term. As hereinafter appears, the wells which were being drilled at the expiration of the three-year period were completed and resulted in producers within a short time after the expiration of said period.
Our construction of the lease brings us to the same conclusion reached by the trial court, who found:
"That the phrase, 'or said premises developed or operated,' used in the habendum clause of said lease contract, signifies and it was understood between the parties to mean and was used in the sense of 'being developed or being operated,' and that the habendum clause in said contract in which said phrase is found was used by the parties to mean and does signify as follows:
" 'To have and to hold the same for and during the term of three years from the date hereof, and as much longer thereafter as oil or gas is found therein or said premises are being developed or are being operated.' "
In the lower court the defendants took the position that the clause under discussion was ambiguous, and over the objection of the plaintiffs, who contended to the contrary, the trial court permitted evidence to be introduced by the defendants for the purpose of showing what the parties to the contract intended by the use of the words on which this controversy hinges. The plaintiffs then introduced evidence as to what the parties understood and intended by the use of said words. The court's finding on this question was as follows:
"Upon this issue a great deal of testimony has been introduced by the parties showing the circumstances surrounding the execution of said lease, the conversations between the parties to said lease and between other persons in the presence of the said parties as to the terms and obligations of the lessee under said lease and as to the conversations of the parties subsequent to the execution thereof with respect to the meaning of the terms of said lease, and the court finds, taking into consideration all of the terms and provisions of said lease, and upon said evidence so introduced, that under the provisions of said lease as understood and intended by the parties thereto, it was the agreement and contract between the parties to said lease that if the rentals on said premises were paid in accordance with the terms of said lease, for the privilege of delaying drilling, the lessee and his assignees had the term of three years within which to commence the drilling of a well on the premises covered by said lease, and that they commenced the drilling of a well within said time, and continued diligently and in good faith to drill the same until completed, although the completion of said well and the finding of oil and gas therein did not occur until after the expiration of the said three years, the term of said lease was thereby continued beyond the period of three years."
The findings of the trial court in an equitable action should be sustained unless it appears that they are clearly against the weight of the evidence. Voris v. Robbins, 52 Okla. 671,153 P. 120; Schock v. Fish, 45 Okla. 12, 144 P. 584; Tucker v. Thraves, 50 Okla. 691, 151 P. 598; Mitchell v. Leonard,55 Okla. 626, 155 P. 696; Thomas v. Halsell 63 Oklahoma,164 P. 458; Rouss v. Crawford, 69 Oklahoma, 170 P. 688.
The evidence shows that the lessors were anxious, first of all, to have a test well drilled. This was done according to contract, resulting in the production of oil in paying quantities and the continuous development of the field. They were anxious that the development of their own particular leases take place as soon as possible. They accordingly secured a conditional three-year term lease from the lessee, with $2 an acre rental for delay through the three-year period, whereas the best offer they had received before this time was a five-year lease with $1 per acre rental for delay, and without any agreement to drill a test well. The tracts described by leases of the fifteen lessors generally were expeditiously developed, and wells were being drilled on the leases in question before any objection was made by the lessors that the leases expired at the end of three years whether drilling was in progress or not. It was not until offers of $1,000 *Page 250 cash in hand and $20,000 and $25,000 deposited in escrow, respectively, pending the securing of valid leases, that the defendants ever raised the question of the right of the lessee or his assignees to begin drilling on the lands described in the leases at any time prior to the expiration of the three-year period. Prowant, in a conversation with another lessor at the beginning of the third year of the lease, in urging him to accept his second year's rental, admitted that he thought such acceptance would give the lessee the right to commence drilling at any time before the close of the three years, and, some time during the month of December, 1916, and prior to the end of the three-year period in March, 1917, and after he had been approached for a lease, he called Crockett over the telephone and asked if it was Crockett's understanding that the lease gave the right to begin drilling operations any time before the expiration of the third year, and was advised by Crockett that it did. Prowant thereafter did nothing further to show that such was not his understanding until drilling had progressed a considerable time on his premises. Custer did not raise the question at all until considerable progress had been made in drilling on his premises. Both lessors permitted rigs to be erected and drilling to be begun some time in January, 1917, and to progress for considerable time without protest, although they knew from the history of other wells in the vicinity and throughout the field that it was a physical impossibility to complete these wells before the expiration of the three-year period in March, 1917. This practical construction of the contract by the parties is entitled to great weight. 6 Ruling Case Law, sec. 241; Elliott on Contracts, sec. 1537; Pittsburg Vitrified Paving Building Brick Co. v. Bailey et ux., 76 Kan. 42, 90 P. 803; Guthrie Mill Elevator Co. v. Howe Grain Mercantile Co.,57 Okla. 613, 157 P. 290; Bearman v. Dux Oil Gas Co. et al., 64 Oklahoma, 166 P. 199.
The evidence further shows that the lessors were expecting development on their premises within a reasonable time, and that they had no reason to be disappointed in this respect. The wells on the premises of Prowant and Custer, though begun only a few months before March 10, 1917, were prosecuted with diligence and by the time these cases were tried oil was being produced on both leases in sufficient quantities to have satisfied any reasonable anticipation of the lessors.
Able, elaborate and exhaustive briefs have been filed by counsel representing plaintiffs and defendants, respectively, which makes it impracticable to treat in detail every argument adduced in support of their divergent theories. One of the most vigorous contentions made by counsel for defendants is, as stated in their own language, that "the leases, by their own terms and by the well settled principles of oil and gas mining law, expired on March 10, 1917, and became null and void thereafter." We have already discussed and disposed of this contention.
We do not consider it important to pursue the query put by counsel for defendants as to the length to which a lessee under this particular form of lease could go in holding lands by purported operations. The cases at bar are clearly cases where the contracting parties understood that drilling operations might be begun at any time prior to the termination of the three-year period, provided they were expeditiously prosecuted in good faith to completion. What we might hold under circumstances where the contracting parties had a different understanding or where the lessees or their assignees were not acting in good faith is not relevant to the issues presented by this record.
The remaining assignment of error is that the trial judge was disqualified to sit in the case. We have examined that part of the record which it is claimed supports this contention and it is our opinion that Judge Hickam was not disqualified and there was no reason appearing in the record why he could not fairly and impartially try the issues. The record also shows that he tried the cases fairly and impartially and rendered a proper judgment. At least three of counsel for defendants admitted during the proceedings that he was not disqualified. The record further shows that all the facts now alleged for disqualification were known to the defendants before the trial and although a proper and effective remedy at law was available for the disqualification of a trial judge where such disqualification exists, they made no effort to avail themselves of such remedy. Sections 5812, 5816, Rev. Laws 1910; Fox v. Ziehme et al., 30 Okla. 673, 120 P. 285; Myers v. Bailey, 26 Okla. 133, 109 P. 820; Ingeles v. McMillan,5 Okla. Cr. 430, 113 P. 998; Ex parte Hudson, 3 Okla. Cr. 393,106 P. 640.
The equities in these cases, we think, are with the plaintiffs, and the finding of the trial court, which we hold is supported by the evidence, being that the contract, construed as a whole in the light of the intention of the parties who made it, gave the plaintiffs the right to commence drilling any time prior to the expiration of the three-year period, provided the drilling operations were diligently pursued in good faith, and since it has been shown that drilling operations were pursued and consummated in good faith *Page 251 from the time they were begun in January, 1917, and that oil was produced and is being produced in paying quantities on the tracts described by the leases in controversy, we hold that the plaintiffs should prevail, and that the injunction heretofore granted by the trial court should be made permanent.
For the reasons stated, the judgment is affirmed.
OWEN, C. J., and KANE, PITCHFORD, JOHNSON, HIGGINS, and BAILEY, JJ., concur; McNEILL, J., dissents; and HARRISON, J., absent.
Dissenting Opinion Filed November 4, 1919.