dissenting.
I dissent.
This dissent was submitted in response to an earlier majority opinion, and is equally applicable with reference to the final majority opinion, especially concerning (1) the propriety of rewriting by the majority opinion of the pertinent agreements of the parties in complete disregard of the plain and unambiguous language of such agreements, and (2) the determination by the majority opinion of facts on appeal contrary to that done by the trial court on the basis of substantial evidence and contrary to our well established rule for appellate review. A short addendum has been added to the original dissent to point out a few of the inconsistencies in the majority opinion.
The majority opinion fails to accept the findings of fact made by the trial court after a two and one-half day trial as is required by repeated holdings of this court. As early as 1923, Justice Blume noted that we must accept as true the testimony supporting findings on conflicting evidence. Seaman v. Big Horn Canal Ass’n, 29 Wyo. 391, 213 P. 938 (1923). Since then, we have often said that in examining the record, the supreme court must assume that the evidence in favor of the successful party is true, must not consider the evidence of the unsuccessful party in conflict therewith, and must give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it. Metcalfe v. Winchester, 72 Wyo. 142, 262 P.2d 404, 407 (1953); Holbrook v. Continental Oil Company, 73 Wyo. 321, 278 P.2d 798, 802 (1955); Twing v. Schott, 80 Wyo. 100, 338 P.2d 839, 840 (1959); Western Standard Uranium Company v. Thurston, Wyo., 355 P.2d 377, 385 (I960); Stock v. Roebling, Wyo., 459 P.2d 780, 784 (1969); Piner v. Piner, Wyo., 511 P.2d 94, 95 (1973); Douglas Reservoirs Water Users Association v. Cross, Wyo., 569 P.2d 1280, 1283 (1977); Farella v. Rumney, Wyo., 649 P.2d 185, 186 (1982), and many others.
Secondly, the majority opinion accurately sets forth law regarding interpretation of contracts, but misapplies it — in effect rewriting the contract for the parties contrary to the plain words of the contract. A summary of the applicable law in this respect is set forth in Amoco Production Company v. Stauffer Chemical Company of Wyoming, Wyo., 612 P.2d 463, 465-466 (1980):
“Our basic purpose in construing or interpreting a contract is to determine the intention and understanding of the parties. [Citations.] If the contract is in *77writing and the language is clear and unambiguous, the intention is to be secured from the words of the contract. [Citations.] And the contract as a whole should be considered, with each part being read in light of all other parts. [Citations.] The interpretation and construction is done by the court as a matter of law. [Citations.]
“If the contract is ambiguous, resort may be had to extrinsic evidence. [Citations.] An ambiguous contract ‘is an agreement which is obscure in its meaning, because of indefiniteness of expression, or because a double meaning is present.’ [Citation.] Ambiguity justifying extraneous evidence is not generated by the subsequent disagreement of the parties concerning its meaning. [Citation.]
“ * * * Whether ambiguity exists is a question of law. [Citations.] * * * “ * * * Even if there be an ambiguous term or portion of the contract, extrinsic evidence is not considered if the meaning of the ambiguous term or portion of the contract can be ascertained from other language of the contract, i.e., from the contract as a whole. [Citations.]” (Footnote omitted.)
In this appeal, we must consider two contracts: (1) a “Contract of Purchase and Sale” between appellant and appellees’ assignors and some third-party claim locators who have no pertinency in this appeal; and (2) a contract consisting of two basic instruments (a “Mining Lease Agreement” and an “Interim Agreement” which was superseded by an “Exploration and Milling Agreement”) between appellees and Tennessee Valley Authority, hereinafter referred to as “TVA.”
The Contract of Purchase and Sale which was executed November 1, 1957, defined the subject thereof as follows:
“1. PROPERTY: The property concerned, consists of unpatented lode mining claims * * * as the same appear of record * * *.” (Emphasis added.)
The provisions of the contract as they relate to the consideration to be paid by ap-pellees’ predecessor are separated as they pertain to appellant and as they pertain to the third-party claim locators. The portion pertaining to the third-party claim locators provides for payment to them of a 10% royalty computed on the gross receipts from the sale of ores mined, produced and sold from the claims. Other provisions as to them concern the time of payment, payment of taxes, maintenance of records, minimum royalty and statement of interest. The portion pertaining to appellant provides in part:
“4. OWNER’S [Appellant’s] PARTICIPATION: * * * the Purchaser [appel-lees’ assignor] covenants and agrees to pay to the Owner, its successors, assigns or legal representatives, a sum constituting forty per cent (40%) of the annual net profits from all uranium, vanadium and other associated minerals and ores mined, produced and sold from the property, computed in accordance with and under the terms and conditions hereinafter set forth. * ⅜ *
“a. COMPUTATION: Net profits shall be arrived at by deducting from gross proceeds those items listed upon the schedule of deductions hereto attached as Exhibit A.
“b. BASIS FOR GROSS PROCEEDS: Gross proceeds shall include the proceeds from ore sold based upon prices established in Circular 5 Revised, or, in event that such schedule should be supplemented by another, the schedule then in effect or the market price then current for such ore; it shall not include the proceeds from the operation of any concentration or milling operation or benefication process which might be erected upon the property or erected, owned or operated by the Purchaser.
* * * * * ⅝
“f. MINIMUM PAYMENT: During this agreement, Purchaser will work the property diligently and in minerlike fashion with the object of discovering, producing and marketing commercial ores. Within sixty (60) days after Pur*78chaser develops a commercial deposit of ore ready for extraction, it shall pay Owner a minimum of Five Hundred Dollars ($500.00) per month as net profits therefrom, which payments shall be a credit upon any and all of Owners share of net profits as herein defined. Such minimum payments shall cease when such ore body has been exhausted unless another ore body has been developed and made ready for extraction. * * * ” (Emphasis added.)
Included in the numerous items 1 listed in Exhibit A referred to in subparagraph a, supra, to be deducted from gross receipts are:
“3. Reserves set aside by Purchaser for future development work * * * adjustment will be made at the end of each fiscal year to reduce said reserves to actual development costs for the year.” (Emphasis added.)
The foregoing contract language is plain and unambiguous in setting forth the intention of the parties to the effect that the subject matter of the contract concerns only undeveloped mineral claims and that any final payment must wait until the claim is worked to result in ores “mined, produced and sold,” with an interim payment of $500.00 per month to be paid when the ore body is “developed and made ready for extraction.” All payments are to amount ultimately to 40% of “annual net profits” from “ores mined, produced and sold,” and gross profits on ore sold are to be “based upon prices established in Circular 5 Revised, or, in event that such schedule should be supplemented by another, the schedule then in effect or the market price then current.”
Of course, these contract provisions only reflect the practical aspect of the situation. When the contract was executed, the nature and amount of ore was unknown. The claim could turn out to be barren, or the ore could be of such poor grade that the cost of mining plus milling would not be economical. Generally, it is necessary to mill the mined ore before its sale value can be determined. The milling process costs money. When the element (uranium, gold, etc.) is not sold until after milling, the cost of milling must be subtracted from the sale price to determine the value of the ore.
There was a conflict of evidence with reference to the use or supplementation of Circular 5 Revised and to the market price of ore. The trial court heard the testimony and reviewed the exhibits placed in evidence and found that the method and alternate method of accounting contained in Sections I and II of Exhibit A were the only ones that followed the contract.2 It must be remembered that the contract was executed November 1, 1957. Only the Atomic Energy Commission could buy uranium at that time. Circular 5 Revised was created to govern purchases by the Commission. It computed the portion of the purchase price for uranium which was attributable to the original cost of ore after subsequent processing (milling) had been accomplished.
Witness Boulton’s testimony was, in part, as follows:
“A. The basic formula outlined in the contract, as I see it, is a determination of the value of unprocessed ore, which has been mined, produced and sold, from that number a deduction is made for certain mining costs as outlined in Schedule A of that exhibit. One which net profit calculated and Owners in this case are would participate in 40 percent of that net profit number.
“Q. And on what basis would the proceeds or gross proceeds be calculated?
“A. In my opinion with respect to taking into account my experience, I would say the X/8 escalation formula as applied to Circular 5 table.
sfc * * * * *
*79“Q. Okay. And do you use or have you used the Circular 5 with the X/8 revision for calculations on your other interests, on other uranium properties.
“A. Yes.
* * * * * *
“Q. Let me ask you, Mr. Boulton, when we speak of Circular 5 X/8, what does that mean, what is the X/8 portion?
******
“A. X/8 is the formula to escalate the formula in Circular 5 based upon the differences of the prior, yellowcake value from $8.00 as established under Circular 5 to whatever the current market price of concentrate is.
“Q. So, Circular 5, the price of uranium is $8.00?
“A. Circular 5 schedule to provide prices for unprocessed ore based upon a selling price of processed concentrate at $8.00 per pound.
“Q. And X/8 is the adjustment to current market price for concentrate?
“A. To escalate that price, based upon changes in yellowcake value from $8.00 to whatever the current price is for yel-lowcake value.
“Q. When you use the Circular 5 with X/8 formula, does it matter what year you use that calculation in?
“A. No. As an example, if the current price of uranium is $40. per pound for yellowcake concentrate, the Circular 5 schedules are based upon the 8 dollars, you divide the 8 into current price referred to as X, that establishes a factor of five times, multiply the Circular 5 schedule by the 5 times which would result being Circular 5 price escalated at the same basis of uranium concentrate price changes.
“Q. And that particular calculation is used to establish an unprocessed ore price when you have a concentrate sale?
“A. Yes, it is to place a value on or before it is processed.”
Thus, the trial court applied the plain and unambiguous language of the contract relative to determination of the gross proceeds from the ore, i.e., “prices established in Circular 5 Revised, or, in event such schedule should be supplemented by another, the schedule then in effect or the market price then current.” It considered the evidence and made a factual finding that the X/8 formula as applied to Circular 5 resulted in the market price or in the price as intended by the parties to the contract.
The majority opinion concludes that the trial court erred in finding that ore was not “mined, produced and sold” under the contract until 19783 on the basis that a sale occurred in 1973 by virtue of the execution of the first of a series of instruments between appellees and TV A, the first of the series being of date April 27, 1973, and the eighth amendment being of date September 6, 1979. This series of instruments comprise the basic instrument labeled “Mining Lease Agreement.” There are several faults in the reasoning of the majority opinion in this respect.
Appellant is to be paid under its purchase and sales agreement with appellees when the ore is “mined, produced and sold.” The majority opinion considers the fact that no ore was “mined or produced” not to be a material deviation from the requirements of the agreement since it was “sold” to be mined and produced later. That is the same as saying that there is no material deviation on a trip from Cheyenne to Denver by the way of Salt Lake City, Utah. The agreement is plain and unambiguous in requiring payment only when the ore is “mined, produced and sold” not only when it is “sold.” The parties were specific in using language that required all three operations as a condition of payment. Their intent was plainly expressed.
“ * * * [Yjjjg car(jinai rule in the construction of contracts being * * * that the intention of the parties, as exhibited by the language they have used shall *80govern.” Fuchs v. Goe, 62 Wyo. 134, 163 P.2d 783, 791, 166 A.L.R. 1329 (1945). “It is one thing to interpret a contract or to discern the contractual intent of the parties pursuant to established legal rules, but it is another thing to make a contract for the parties. We are obliged to do the former, and we are prohibited from doing the latter.” McCartney v. Malm, Wyo., 627 P.2d 1014, 1020 (1981). « * * * [T]he supreme court will not rewrite clear contracts. [Citation.] Nor will this court rewrite contracts under the guise of interpretation. * * * ” Wyoming Machinery Company v. United States Fidelity and Guaranty Company, Wyo., 614 P.2d 716, 720 (1980).
Additionally, payment to appellant prior to the ore being mined and produced is not practical or possible. The Mining Lease Agreement between appellees and TVA concerned a great many mining claims in the Gas Hills area. (Appellant’s two claims are among about 75.) The evidence reflected the ore in appellant’s claims to be borderline for economic production. The Mining Lease Agreement provided for payment for “pounds of ⅞03 concentrate” (milled uranium). Obviously, the payment includes the cost of the ore, its development and the milling. To determine the proportion of any amount due appellant from the advance payment for “pounds of U308” would require an advance determination of the ore to be produced from appellant’s few claims in proportion to that from the other claims in addition to advance determination of the milling and other costs. The Circular 5, X/8 formula could be used to separate the milling from the ore costs but only if there were an accurate figure to which to apply the formula. Such figure could not exist prior to determination of the actual price received for milled ore from appellant’s claims. Even if a gross profit figure could be established, the costs attributable to taking the ore from these few claims, i.e., salaries, equipment, etc. as listed in Exhibit A referred to in subparagraph a, supra, (a special problem involving a geologic fault in these claims did surface, causing extra expense), would have to be known in advance. This would be an impractical situation, and one obviously not intended by the parties.
The association of the “Mining Lease Agreement” and the “Interim Agreement” with the superseding “Exploration and Milling Agreement” will be discussed infra.
Turning then to the two issues as presented by appellant on appeal of this case:
ISSUE I: DID THE CONCLUSIONS OF LAW CONTAINED IN THE DISTRICT COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW NOS. 2, 3, AND 4 REFLECT PROPER LEGAL STANDARDS AND PRINCIPLES? 4
The two findings of fact and conclusions of law referred to and argued by appellant read:
“2. On April 27, 1973, defendants entered in an agreement with TVA to develop the property in question and other properties. Defendants were to be paid for their costs and profits. TVA agreed to pay $7 million to defendants before production as an advance on costs. Plaintiff is entitled to participate in this payment to the extent reflected in Exhibits A and B of defendants.
“4. From October, 1978, through 1981, Defendants mined and produced uranium from the claims held by plaintiff. The ore was not sold at that stage but was milled by Defendants and then transferred to TVA under that contract, whereupon Defendants were paid for both mining and milling in one sum. Nevertheless, the contract held by Plaintiff and Defendants can be applied to this situation and may even have been anticipated by the contract, which provides in the first instance for computation of gross proceeds by application of a predeter*81mined Circular 5 formula, not by the application of the actual price for which the ore might be sold. Therefore, the amounts due Plaintiff can be computed in accordance with the contract by applying the Circular 5 prices, as supplemented, to the tonnage mined, deducting the costs allowed in the contract, and paying 40% of this to Plaintiff, giving Defendants credit for the monthly payments. This was done in Exhibit A of Defendants, Section I. This method and the alternative one in Section II of Exhibit A are the only accountings presented which follow the contract. The method in Section I is the one first mentioned in the contract and provides the greatest benefits to Plaintiff. Therefore it is the one which should be adopted. Accordingly, judgment will be entered in favor of Plaintiff and against Defendants in the amount of $3,306, together with court costs and interest at the legal rate from January 1, 1979, as this is a liquidated sum which could be determined by mathematical calculations from the contract formula and which was due on January 1, 1979.”
With reference to paragraph 2, appellant contends that (1) the agreement there referred to, i.e., the Mining Lease Agreement, was not to “develop the property in question and other properties” but was a sale of minerals in place; (2) the paragraph improperly infers that the development was to be a joint one between TVA and appel-lees; (3) the costs were all those of TVA and appellees had none, wherefore the statement that appellees “were to be paid for their costs” was error; and (4) TVA’s agreement to pay $7 million to appellees before production was not an “advance on costs.”
As already noted, appellees’ ownership of the “property” as defined in its acquisition agreement was ownership of “unpatented lode mining claims,” i.e., undeveloped mineral claims. The minerals in place were owned by the United States. Consistent therewith, the Mining Lease Agreement between appellees and TVA was one to “develop” the “unpatented lode mining claims.” The trial court so found. Other provisions of the Mining Lease Agreement between TVA and appellees reflect the intention of the parties for it to be an agreement to “develop” the claims. The grant is “the exclusive right to explore, develop, mine, extract and remove” minerals from the claim, and “thereafter to retain all right[,] title and interest in and to all such severed minerals” — not a grant to ownership of minerals in place. The instrument also contains requirements for annual assessment work, provisions for forfeiture upon breach, and it is called a lease — all inconsistent with a sale of minerals in place. The trial court would have erred if it found the agreement to be a sale of minerals in place in view of the plain and unambiguous language of the agreement.
I cannot find any language in paragraph 2 of the Findings of Fact and Conclusions of Law from which it can be inferred that the property was to be developed jointly by TVA and appellees, contended by appellant to have been an erroneous finding of the trial court. The trial court’s language is plain in stating that appellees “entered in an agreement with TVA to develop the property.” Certainly, the language of the grant in the 1973 Mining Lease Agreement between TVA and appellees is positive and plain in setting forth the fact that the development was to be “the exclusive” right of TVA.
Considering together appellant’s third and fourth contentions relative to paragraph 2 of the court’s findings and conclusions 5, the intention of the parties as expressed in the contract of which the Mining Lease Agreement is a part, is properly reflected in the court’s findings and conclusions.
The April 27, 1973 contract between ap-pellees and TVA was contained in two doc*82uments, both executed the same day. One document was titled “Mining Lease Agreement.” It consisted of 23 pages and had 23 pages of attached schedules. As already noted, it was amended 8 times over a period of about 4 years (81 pages in amendments). The other document was titled “Interim Agreement.” It consisted of 7 pages and recited that:
“WHEREAS, the parties hereto have this date entered into a Mining Lease Agreement (hereinafter ‘Lease’), a copy of which is attached hereto as Exhibit A and made a part hereof * * *.”
It also had an additional 10 pages of exhibits and schedules. It provided that it was entered into:
“ * * * until such time as * * * [the parties] are able to develop a definitive Exploration and Milling Agreement.”
On April 11, 1974, the “definitive” agreement was executed. It provided that the Interim Agreement “is hereby superseded by this Exploration and Milling Agreement.” It consists of 75 pages and 125 pages of exhibits. It was amended 7 times between April 1, 1976 and May 18, 1980 (68 pages). It made reference to the Mining Lease Agreement as one of the bases for its execution. It generally provided as did the Interim Agreement but in much greater detail.
The “Mining Lease Agreement” and the “Interim Agreement” are to be considered as a single agreement between the parties.
“A written agreement may consist of more than one document. Allen v. Allen, Wyo., 550 P.2d 1137 (1976). * * *
!⅛ s*i sj: 5⅝ jfc ⅜
“ * * * [Reference in a contract to extraneous writings renders them part of the agreement for indicated purposes. Kilbourne-Park Corporation v. Buckingham, Wyo., 404 P.2d 244 (1965); * * Busch Development, Inc. v. City of Cheyenne, Wyo., 645 P.2d 65, 68, 70 (1982).
“ * * * Where a written contract refers to another instrument and makes the terms and conditions of such other instrument a part of it, the two will be construed together as the agreement of the parties. * * * ” 17 Am.Jur.2d Contracts § 263, pp. 666-667.
“The general rule is that in the absence of anything to indicate a contrary intention, instruments executed at the same time, by the same contracting parties, for the same purpose, and in the course of the same transaction will be considered and construed together, since they are, in the eyes of the law, one contract or instrument. ⅜ * * ” 17 Am.Jur.2d Contracts § 264, p. 668.
The Exploration and Milling Agreement is a contemplated refinement of the Interim Agreement executed on April 27, 1973.
The Interim Agreement provided that ap-pellees’ “costs incurred in performing its obligations to TVA under this agreement shall be reimbursed to the extent allowable under this paragraph.” The paragraph sets forth the requirement that the costs be “reasonable” and in accordance with “generally accepted accounting principles;” that they “include but not be limited to taxes on the mill and reasonable general and administrative costs;” that officers’ and directors’ salaries be excluded; that depreciation “on the existing mill” be excluded, but that “[t]o the extent capital expenditures are required in order to repair, maintain, or expand the mill,” as approved by TVA, be included. Similar acceptance of various costs by TVA were agreed upon, such as “management of the mining properties,” and “exploration work” with respect to mining properties. It provided priority for milling ores directed to the mill by TVA and for payment by TVA of shutdown, standby and start-up costs plus $50,000 per year if the mill was idle; it provided a payment of up to $250,000 a year for each year 290,000 tons of ore were not processed by the mill. It provided for the setting up of an operating account to which TVA would deposit money for withdrawal by appellees for allowable costs.
The definitive “Exploration and Milling Agreement” expanded on the terms of the Interim Agreement. It required detailed *83annual budgeting and planning, and it specified the allowable costs in detail.
The “Mining Lease Agreement” required a payment by TYA to appellees of:
“fifty percent (50%) of the amount by which the market price for u3°8 concentrate exceeds the production cost of such concentrates, which costs shall include payments made pursuant to paragraphs A and B above * * (Emphasis added.)
The costs referred to in paragraphs A and B as payments or advancements made toward production costs were:
“A. As concerns 6,000,000 pounds of U3°8 contained in reserves upon the Mining Properties and presently classified as Indicated Ore, Lessee shall pay Lessor Seven Million dollars ($7,000,000) payable:
“(1) Four Million Five Hundred Thousand dollars ($4,500,000) at closing; and
“2. Two Million Five Hundred Thousand dollars ($2,500,000) on or before January 1, 1979.
“B. As concerns 2,400,000 pounds of u3°8 contained in reserves presently classified as Inferred Ore (over and above the said 6,000,000 pounds referred to in A above), an amount equal to sixty-two and one half cents (62V2<t;) per pound of U3°8 in that category determined by March 31, 1975, to be Indicated Ore, up to and until a maximum of One Million Five Hundred Thousand dollars ($1,500,-000) is owed to Lessor. * * * ”
“Indicated ore” was defined as:
“ * * * [0]re that has been sampled at such reasonably close intervals that assumptions can be made on the continuity, grade and amount of ore bounded by the sample points.”
“Inferred ore” was defined as:
“ * * * [Ojre for which quantitative estimates are based largely on broad knowledge of the geologic character of the deposit and for which there are few, if any, samples or measurements. The estimates are based on an assumed continuity or repetition for which there is geologic evidence; this evidence may include comparison with deposits of similar type. Bodies that are completely concealed may be included if there is specific geologic evidence of their presence. Estimates of inferred ore should include a statement of the special limits within which the inferred ore may lie.”
These instruments adequately reflect the contract intention of the parties for appel-lees to set up and operate a uranium processing plant near Riverton for the processing of ore from the many claims which they had under lease in the Gas Hills area (including the two of appellant), and to sell the milled product to TVA. The costs to be incurred by appellees in exploration, milling, administrative operations, property management, etc., were to be advanced by TVA. Appellees were to profit to the extent of 50% of the amount by which the market price of the concentrate exceeded the production costs.
There was an unqualified recognition by the parties to the instruments forming this contract that the amount to be paid to the lessors (including appellant) of the numerous properties leased by appellant would be determined after the milling process. The large amount of money to be received by appellees under the “Mining Lease Agreement” could not have been contemplated to consist of payment for ore and thus be subject to be allocated among the numerous lessees inasmuch as it was specifically included in “payments made” for “production” costs, and inasmuch as the interest of each lessee could not be determined until after the milling process resulted in a certain number of pounds of concentrate attributable to each claim, and until the many costs of extraction, etc., for each claim could be deducted from the gross amount. As noted, the contract between the parties was also plain and unambiguous in this respect, requiring payment of 40% of the net profit from ore “mined, produced and sold.”
Also as noted, even if the money received by appellees in 1973 was taken to be for *84apportionment among the many lessees, the result would be the same. The after-milling price would have to be determined, the pounds of ore from each claim would have to be determined, the costs of development would have to be determined, and the net profit would end up with the same amount due appellant as was reflected by the evidence.
The trial court heard over three days of testimony relative to the operations of the parties and the accountings resulting from the contract. Exhibits were numerous. After considering the same, it properly found that appellees were to be paid for their costs by TVA and that the $7 million agreed by TVA to be paid to appellees before production was an advance on costs.
Finally with reference to Issue No. 1, appellant contends error in the court’s Finding of Fact and Conclusion of Law No. 4 in that it finds the sale of the ore to have occurred after it was mined and produced, and in that the sale price was properly determined by use of the Circular 5, X/8 formula. That already said answers this contention. Even if it were agreed that title to the ore passed before it was mined and produced, its value could not be ascertained until after it was milled. Appellant would have this court accept the testimony of its expert witness as to damages while acknowledging that damages could not be accurately testified to by him on the basis of the information at hand. The trial court opted to believe the other witnesses. As noted, this court must accept the evidence in support of the findings by the trial court and disregard conflicting evidence.
The trial court’s Findings of Fact and Conclusions of Law were supported by substantial evidence and were in accordance with the intent of the parties to the two contracts pertinent to this case.
ISSUE 2: DID THE DISTRICT COURT ERR IN REJECTING APPELLANT’S CONTENTIONS THAT IT WAS ENTITLED TO A CANCELLATION OF THE CONTRACT OF PURCHASE AND SALE AND AN ACCOUNTING FOR ONE HUNDRED PERCENT (100%) OF THE VALUE OF THE URANIUM REMOVED FROM THE CLAIMS, LESS REASONABLE COSTS OF MINING AND MILLING SAID URANIUM, BECAUSE OF AP-PELLEES’ BREACH OF DEPENDENT COVENANTS CONTAINED IN THE CONTRACT OF PURCHASE AND SALE OF NOVEMBER 1, 1957, OR BECAUSE OF APPELLEES’ BAD FAITH IN FAILING TO ACCOUNT AND PAY NET PROFITS AS CONTEMPLATED BY SAID CONTRACT OF PURCHASE AND SALE; AND, AS A RESULT THEREOF, DID THE COURT ERR IN REFUSING TO ADMIT AND CONSIDER APPELLANT’S EXHIBITS 27 THROUGH 64 IN SUPPORT OF SUCH CONTENTIONS?
That which I have already said relative to the misconceptions of the majority opinion and relative to appellant’s argument on the first issue presented reflects the lack of error on the part of the district court in connection with this issue.
The plain language of the contract reflects that payment to appellant was not to be made until the ore was “mined, produced and sold,” and that the minimum payment of $500 per month “as net profits therefrom, which payments shall be a credit upon any and all of owner’s share of net profits” shall be made within 60 days “after purchaser develops a commercial deposit of ore ready for extraction.” Implicit in the judgment of the district court is the finding that the $9,000 paid by appellees was the amount due under the minimum payments clause, which clause required the payments to begin 60 days after the ore was ready for extraction. Also implicit in the judgment is the finding that the claims were developed in a minerlike fashion as required. There was evidence to support these findings, and the court awarded interest of $963.72 for the delay in payment of some of the minimum payments. Also implicit in the judgment is the finding that any deviation from the terms of the Contract of Purchase and Sale of the claims *85was not a substantial one. There was evidence to support these findings which are implied in the judgment.
Appellant received that called for by the Contract of Purchase and Sale. It received 40% of the net profits from the sale of the ore from the two claims. It contended that it was entitled to a share of the profit from the milling process, but such was obviously not required by the Contract of Purchase and Sale.
The court found the accounting presented by appellees to be proper, and it rejected the testimony of appellant’s accountant witness. Appellees’ accounting reflected the gross proceeds received from the two claims as determined by application of the Circular 5, X/8 formula. The propriety of this method was discussed supra. A monthly itemization of tons, grade, pounds contained, market price, etc., was set forth. The accounting lists the pit mining costs by items (waste removal, mining, reclamation, production taxes, etc.) for each year since the operation began in 1978. The net profit was the difference between the gross proceeds and the costs. The court awarded 40% of the net profit so determined to appellant, less the $9,000 minimum payment already made, and plus the accrued interest of $963.72.
Appellant argues that the Contract of Purchase and Sale, dated November 1, 1957, was a lease and not a deed and that the obligation of appellees to pay appellant is a dependent covenant wherefore the lease must fail if payment is not made, and appellant is entitled to 100% and not 40% of the net profits. Not only was proper payment made, but the instrument has the requisites of a deed since in it appellant and the third-party claim locators to it “convey, quitclaim and assign” the claims to appellees’ predecessor (see Whalon v. North Platte Canal & Colonization Co., 11 Wyo. 313, 71 P. 995 (1903)). Since it was a deed without a right of reentry or reversion, it would not fail. But, even if it were a lease, performance was made under it, and any failure to make some of the minimum payments on time, or furnish ac-countings, are not dependent covenants, the violation of which are material deviations from the terms of the contract. The case cited by appellant for definition of a dependent covenant supports this finding; a finding implicit in the trial court’s judgment.
“A covenant is dependent where it goes to the whole consideration of the contract; where it is such an essential part of the bargain that the failure of it must be considered as destroying the entire contract; or where it is such an indispensable part of what both parties intended that the contract would not have been made with the covenant omitted. *** ” Steak House, Inc. v. Barnett, Fla., 65 So.2d 736, 738 (1953).
Accountings by appellees were required under the Contract of Purchase and Sale, but only when distribution of payments was made. Appellees contended that such distributions were never in order because the claims did not produce one sufficient for a net profit. In fact, appellees contended that a loss occurred from developing these two claims. The trial court found otherwise and found a small resulting profit. Fraud and bad faith cannot be said to have existed on appellees part simply because the trial court found their sincere position to be wrong. It is further noted that appellant was authorized by the Contract of Purchase and Sale to examine the records of appellees “during • business hours and not oftener than once each month” and if appellant reasonably believed the payments to be incorrect, it had “the right to cause an audit to be made of the records * * * by an independent certified public accountant.” It did not do so.
The foregoing refutes appellant’s final contention that the trial court erred in refusing to admit appellant’s Exhibits 27 through 64 into evidence, they being in support of appellant’s position relative to there being a breach of dependent covenants in the Contract of Purchase and Sale and the existence of bad faith on the part of appellees.
*86When offered, the objection was for the reason that the only purpose served would be to support appellant’s count for punitive damages which the court had already ruled against. Appellees had argued to the district court that punitive damages are not usually awarded in breach of contract actions, Waters v. Trenckmann, Wyo., 503 P.2d 1187, 1188 (1972). The propriety of the trial court’s ruling in this respect is not before us. Appellant argued to the district court that the exhibits were offered for all the issues in the case. An offer of proof was dispensed with because the exhibits were included in the record.
The exhibits consisted of material from appellees’ files. They were interoffice memorandums, letters between appellees and TVA and between appellees and their legal counsel. They concerned the economic feasibility of developing the two claims and the time table for doing so. They referred to the necessity for beginning the minimum payments at the proper time, and similar matters.
It would seem that their admission into evidence would have little bearing on the matter one way or the other. In any event, the failure of appellant’s theory relative to the requirements of the two pertinent contracts makes the admission or nonadmission of the exhibits to be immaterial. They would be pertinent only if the wording of the contracts were to be changed by the court to require payment to appellant when the transaction between appellees and TVA was entered into rather than when the ore was “mined, produced and sold.”
ADDENDUM
The majority opinion alleges that:
“ * * * all rights to the ore were sold prior to its being mined and produced. * * * ” (Emphasis in original.)
and again:
“The language in the mining lease agreement, as well as surrounding circumstances, leads us to conclude that the agreement constituted a sale of ore to TVA, notwithstanding the document’s designation as a lease. Under the lease agreement FAP granted to TVA “ “ * * the exclusive right to explore, develop, mine, extract and remove from the Mining Properties all uranium and other fissionable source materials, * * * and thereafter to retain all right title and interest in and to all such severed minerals.’ * * * ” (Emphasis in original omitted, and emphasis added.)
It may be that the “rights to the ore” were sold prior to its being mined and produced, as recited in the first quotation, but the majority opinion completely disregards the word “thereafter” in the second quotation — language which is plain and unambiguous in reflecting the time of transfer of “all right title and interest” in the ore to be after it is extracted and produced.
Additionally, the second quotation indicates that the agreement was for a sale “notwithstanding the document’s designation as a lease.” Then, subsequently, the majority opinion reads:
“ * * * We conclude that such an agreement is properly denominated a ‘lease’ and may be cancelled upon a showing of a material breach.”
The inconsistency is obvious.
Since I find no error by the trial court, I would affirm.
. E.g., costs of equipment, machinery, salaries, supplies, development work, royalty, taxes, depreciation, etc.
. The court applied Section I because it "provides the greater benefits to” appellant.
. The fact that the ore was not mined, produced or sold until 1978 was firmly established by the evidence.
. In its brief, appellant withdrew its objections to paragraph 3 of the Findings of Fact and Conclusions of Law.
. The costs were all those of TVA and appellees had none, wherefore, the statement that appel-lees "were to be paid for their costs” was error, and TVA’s agreement to pay $7 million to appel-lees before production was not an "advance on costs.”