I concur in the result only.
I give no effect to the jury verdict but would base my agreement to affirm upon rulings as a matter of law that (1) the “royalty” provision applies (2) the force majeure clause applies. Although incidental, I would also hold that the “option” provision does not apply as a matter of law in that it is “at Buyer’s option” and hence is invoked only by some form of notice which was not given.
Since appellant concedes that it must be correct on all three major issues in order to recover under its damage testimony the success of appellant’s attack on the “option to reduce the daily contract quantity” does not affect the judgment that should be entered. If it is necessary to rely upon the jury’s findings on any question other than damages I do not agree with the court’s holdings with reference to the jury instructions given and evidence rejected.
With respect to the “royalty” question the agreement provides that it excepts “such portion of the gas produced from the reservoirs subject to this Agreement as Sellers lessor may be entitled to take or receive under the terms of Sellers leases..." It is undisputed that the sellers lessor is the United States and under the *786leases it was entitled to take royalty gas in kind. It is equally clear that as a matter of practice the government does not exercise this privilege. However, the agreement is clear that the royalty gas could have been taken, and thus, was excluded by the express terms of the agreement.
With respect to force majeure the contractual definition includes an express provisions bringing within it "... any act or omission, {including failure to take gas) of a purchaser of substantial quantities of gas from Buyer which is excused by any event or occurrence of the character herein defined as constituting force majeure, and any laws, orders, rules, regulations, acts or restraints of any government or government body or authority, civil or military.” As a matter of law FERC Order No. 380 falls within this provision. This conclusion is aided by Article V section 8 of the contract providing “Notwithstanding anything to the contrary contained herein, on any day when deliveries or takes are affected by force majeure and the volumes of gas well gas delivered are less than the applicable daily contract quantity, the daily contract quantity hereunder shall be deemed to be the actual volume delivered and purchased on each such day.”
Application of my views would also result in an affirmance and I, therefore, concur in the result.