dissenting. It will be noted, from the terms of the contract, that the brick company did not lease the land for all purposes, as the owner reserved the right to the use of the farming lands, provided such use should not interfere with the brick company’s right of ingress and egress. The brick company, under the contract, procured the exclusive right to take from the land “such amount of dirt and clay as they may see ■proper,” for a given time, to be used in the manufacture of brick, as well as the right to use such parts of the land as might be necessary for establishing a brick-yard thereon and building such houses, etc., as might be necessary for the carrying on of the business of making brick “in such quantities as to them may seem proper,” the company agreeing to pay a given price per thousand “for all merchantable brick manufactured out of the clay taken from said land.” The company was to pay down a given amount in cash and $100 on the first day of each month for a specified time, but, on the first day of January in each year thereafter, an accounting should be had between the parties, when the owner of the land should account for any overpayments made, and the brick company should account for any deficit, on the basis of the price stipulated as royalty. In view of these express stipulations in the contract, there was no implied obligation on the part of the brick company to use reasonable diligence in operating the clay mine and brick plant under ordinary conditions. The cardinal rule of construction of contracts is to ascertain the intention of the parties. If that intention be clear and it contravenes no rule of law, and sufficient words be used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction. Civil Code, § 4266. Of course, the whole contract should be considered in arriving at the intention of the parties, and all parts of *301tlie instrument should be construed with reference to each other, but no part should be discarded or ignored if such a course can be avoided; and in the absence of any fraud, accident, or mistake, the instrument, if free from ambiguity, must be taken as written,— in other words, in such a case the parties must stand or fall by the terms of the writing. In the majority opinion, as it seems to us, no force whatever is given to the terms of the contract which clearly indicate that the brick company should have the option to use such amount of dirt and clay from the land as to the company might seem proper. While it is true that the company obligated itself to pay $100 on the first day of each month, an accounting was to be had on the first day of January of - each year for the purpose of ascertaining whether or not the company had paid for more or for less clay than it had used during the preceding twelve months. If it had paid for more than it had, used, the owner of the land was to repay the company the overplus; and if it had paid for less than had been used, the company was to pay the deficit. Doubtless the very reason for having such an accounting was that the company had the option, under the express terms of the contract, of determining how much clay should be taken and used from the land. The quotation from 2 Snider on Mines, § 1284, used in the opinion of the majority of the court, is not, in our opinion, applicable to the contract involved in the case at bar. The gist of that quotation is: “The lease of a mine, in the absence of covenants requiring a certain amount of work, at least implies that the lessee will work the same with reasonable diligence.” While it is true that the contract in the present case does not contain a covenant requiring a certain amount of work to be done in mining the clay, there are, as we have seen, express provisions to the effect that the brick company shall have the option to remove from the land such amount of clay as it shall see proper, and to pay, for the amount so removed, a given price. In support-of the text from Snider on Mines, quoted in the majority opinion, are cited the following cases. Cotch’s Appeal, 93 Pa. St. 434; Sharp v. Wright, 28 Beavan, 150; Barnard v. Arnold, 27 Conn. 617; Watson v. O’Hern, 6 Watts, 362. In none of the contracts construed in these cases; nor in any other case cited in the majority opinion, was there anything indicating that the person who was given the right under the contract to mine the coal or other mineral *302had the option or discretion of determining the quantity of the mineral that he should take from the land. In the case in hand, as we have already indicated, the contract clearly expresses all of the obligations undertaken by the brick company, and there is no room for imposing more upon it by implication. The intention expressed in the instrument must be given its legal effect.
If, however, the majority of the court are right in deciding that, under the terms of the contract, the brick company was under an implied obligation to use reasonable diligence in operating the clay mine and brick plant under ordinary conditions during the entire lease, then we are of opinion that the measure of damages which the owner of the land would be entitled to recover of the brick company for failure to mine the clay and operate its brick plant would not be $100 per month with interest thereon. The exclusive right given to the brick company under the contract in this case to taire clay from the land for the purpose of making brick does not stand upon the same footing as, say, a lease by the owner of his grist-mill to another for a- given term, the rental to be paid being a given proportion of the tolls. In such a case, if the lessee should immediately shut down the mill and refuse to operate it at all during the term, the lessor at the end of the lease would merely get back his mill without receiving any rental, and would therefore have a right of action for the value of the full amount of what would have been his proportion of the tolls had the mill been operated as the parties contemplated. Where, however, a right to mine minerals is granted in consideration of the reservation of a certain portion of the product for the lessor, and the lessee wholly fails to operate the mine, the lessor, at the end of the term, would still have the minerals which the lessee had failed to mine, and therefore the lessor would not be entitled to get back all of his ore and also recover from the lessee for the portion of it which he would have received had the lessee mined it all.' In such a case, as to the proportion of the mineral which the lessor would have received had it been mined as contemplated, the damages which he would be entitled to recover would be the difference between the stipulated price-and its value in the mine. Lyon v. Miller, 24 Pa. St. 392.