The sole ground for the judgment of reversal about to be made in this case is stated in the opinion of Mr. Justice Spring. He says: “The court submitted to the jury the question for them to determine whether Galletts had abandoned the lease. I think this was error. The facts were not in dispute, and as matter of law the lease had terminated long before the contract made with the plaintiff.” It seems to me that upon all the evidence the question whether' Galletts had abandoned the lease executed and delivered to him was a question of fact for the jury and that the finding that it was not so abandoned should be regarded as final and conclusive. Indeed, the appellant.does not contend that such finding is against the weight of evidence, but insists that, accepting all the evidence as true,, it establishes abandonment as matter of law and, as we have seen, such is the view taken by the majority of the court.
On the 9th day of August, 1884, "William Krandusky, who was the husband of the defendant, became the owner of the premises described in the complaint and went into possession of the same. His wife, this defendant, resided with Mm and continued so to reside with him on the premises as his wife, and after October 20, 1896, as owner of the premises, William having deeded the same to the defendant on that day, and from that day until the time of the trial she continued to be such owner.
On the 28th' day of March, 1893, while William Krandusky (defendant’s husband) .was the owner of the premises, and while she was residing with him upon the premises, he executed a lease of the same to Joseph A. Galletts, giving the lessee the exclusive right to dig, bore and gather all oil or gases found in and upon said premises for the term of fifteen years from the date of said lease, or so long as oil was found in paying quantities. In consideration of such lease Joseph A. Galletts agreed to pay $130 in cash and agreed to give to the owner of the premises one-eighth part of the oil produced and saved from said premises. It also provided : “ This lease shall be *768null, and- void, and at an end, unless said second party shall within three months from this date commence and prosecute with due diligence, unavoidable accidents excepted, the sinking or boring of one well * * * to a depth of 1200 feet, unless oil in paying quantities is sooner found, and if said second party does not commence in three months from said date he is to pay Ten Dollars a month until he does commence.” It was also' provided : “ If the party of the second part fails to keep and perform the covenants and agreements by him to be kept and performed, then this- lease shall be null and void and surrendered ■ to the party of the first part,” and further, “ It is agreed that the foregoing stipulations and agreements shall apply to and bind the heirs, executors, administrators and assigns of the respective parties thereto.”
Under this lease Galletts entered upon the premises and paid rentals under it thirteen or fourteen months, and finally drilled a well upon the premises. The well was drilled 1,330 feet deep and a little oil was found. The derrick was left, there for a while and then was reproved; a casing head was put on and the well closed, the casing being left in the well. Oil was not- found at that time in paying quantities, although an abundant supply of gas was found. In July, 1905, Joseph A. Galletts re-entered upon the premises in question, presumably under the lease which he had taken from William Krandusky in March, 1893, and drilled another well, which, was completed in July, 1905, and that was found to be a well of ten or twelve barrels capacity per day. When Galletts re-entered upon the premises, so far as appears, the defendant made no objection, made no protest, and Galletts went there by virtue of the authority given to him by the lease executed by defendant’s husband. Under such circumstances, I fail to see how it can be held, as matter of law, that .Galletts had abandoned his lease or that he or the defendant understood he had abandoned the same. Whether or not Galletts forfeited his rights under his lease is very largely a matter of intention of the parties to it or their assigns. It seems to me that the evidence fully justifies the finding in this case, that it was not considered by either Galletts or the defendant that the rights of Galletts under such lease had been abandoned or had been terminated, but, at least, upon all the evidence, it was a question of fact for the jury to determine. If such"lease to Galletts. had not been aban*769doned and was still in force, then, clearly, the defendant made and executed the lease in question to the plaintiff without right or authority, and received from him the $100 which he is seeking to recover in this action without right or consideration.
The case of Eaton v. Allegany Gas Co. (122 N. Y. 416) I think is not an authority which sustains appellant’s contention. In that case the referee found, as matter of fact, and upon the evidence in that case, that the prior lease had been abandoned and that all the rights of such prior lessee in and to the premises in question had terminated. The court, in its opinion, says, in substance, that under the facts and circumstances of -that case “ it was well held by the learned referee that the contract might be, and was, legally terminated by the lessor.” The Court of Appeals in that case did not assume to hold that, as matter of law, the lease there in question had been abandoned and the rights thereunder terminated.
On a fair and impartial charge the jury in this case were asked to pass upon the precise question whether or not, upon all the evidence and under all the circumstances, Galletts had abandoned his rights under the lease. The jury found that he had not; that the acts of the parties were such as to indicate that it was not intended that such abandonment should result, and, therefore, the question as to abandonment was answered by the jury favorable to the respondent’s contention.
It seems to me. that the judgment, and order appealed from should be affirmed. The finding of the jury that the rights under the Galletts lease have not been abandoned should be regarded as final and conclusive upon the parties to this action, and, therefore, it follows that plaintiff is entitled to recover back the $100 which he paid, to the defendant upon the representation made by her that no valid or existing lease was outstanding which affected said premises.
The judgment and order appealed from should be affirmed, with costs.
Kruse, J., concurred.
Judgment and order reversed ,and new trial ordered, with costs to appellant to abide event.