W. A. Miller, Sr., W. A. Miller, Jr., and Stuart Miller, a partnership, doing business under the firm name of W. A. Miller & Sons, sued G. W. Deahl, O. E. Deahl, R. L. McSpadden, J. W. Lawrence, W. E. Dawson, S. B. Vaughn, S. B. Motlow, W. N. Thompson, F. N. Davis, G. D. Whitsett, R. A. Blackshear, and R. A. Underwood, together with the First National Bank of Amarillo, to compel said bank, which it is alleged held an oil and gas lease in escrow, to deliver the same to the appellants. It is alleged, in substance that G. W. and O. E. Deahl executed an oil and gas lease on March 9, 1918, upon 9,000 acres of land owned by them in Carson county, to the appellants, which lease was placed in escrow with said bank; that by the terms of the contract the lease should be .held by the bank, subject to the terms of the agreement providing, in substance: (1) For a careful geological survey of the lands by. a competent geologist, at the expense of appellants within 6 months from the date of the contract, copy of the geologist’s report to be furnished to the lessors; (2) if the geologist’s report proved to be favorable appellants were to begin drilling on the land with a standard drilling rig within 12 months from the date thereof, and to continue such operations until oil or other minerals were found in paying quantities; (3) that if the report of the geologist was unfavorable the obligations were at an end; (4) that as soon as 'drilling (Commenced with a standard outfit the bank should deliver the lease to appellants. * Appellants further alleged that they had complied with the terms of the escrow contract, and were entitled to demand the delivery to them of the oil and gas lease; that because of the interference and objections of the lessors, the Deahls, the bank had refused to make delivery.
The defendants, McSpadden, Lawrence, Dawson, and others, were sued as sublessees of the appellants, and, with the exception of Blackshear, they either disclaimed or quit-claimed all interest in the lease in question.
The lessors G. W. and C. E. Deahl answered by general denial, the two-year statute of limitations, and, further, that appellants had not complied with the terms of the escrow contract; that they had not placed a standard rig on the premises within 12 months and commenced drilling; that they never in fact began drilling with an outfit capable of making a thorough bona fide test within the time limit, nor had they made the deposit as provided- in the oil and gas lease contract. They further alleged an abandonment by appellants of the original contract and of all claims and rights thereunder, and that they recognized and admitted that they had failed to comply with the terms of the contracts, and had-treated the same as at an end; that they had entered into other negotiations along other lines, and sought to make, and did make, other contracts in regard to leasing said lands, thereby showing their abandonment of said original contracts, and recognizing their failure and inability to perform the same; that the appellants had contracted with one Seigfried for the drilling of a well on the leased premises, had caused the lessors to execute an oil and gas lease, conveying to J. B. Beard for their benefit, a part of the leased premises, which was deposited in escrow with C. E. Gustavus; that the original contract between the parties was of no further effect, and should be canceled.
By supplemental petition the appellants pleaded specially that because of the contract with the sublessees McSpadden et al., whereby it was understood and agreed that a star rig might be used, the lessors had waived and abandoned the standard rig requirement, and were estopped to claim forfeiture of the lease because of aixpellant’s failure to use such a rig. Further waiver, abandonment, and estoppel was pleaded against lessors, in that they acquiesced in the use of the rig used„and that operations were begun on February 17, 1919; that drilling was .commenced February 19, 1919, which continued up to March 15, 1919, and during all of said time no objections were made by appellees. They allege a substantial compliance with the escrow contract and the oil and gas lease, and that all preparations were being made to erect a standard derrick to be used at a proper time. They allege full compliance with all the obligations resting upon them, set up their ability and willingness to go forward under the contract, and further specially alleged that the lessors have waived compliance with the strict terms of the escrow contract, in that on March 15, 1919, the rights of appellants were recognized by the lessors by written instrument of that date, by the terms of which appellants were relieved of the obligation to further drill, and that on May 15, 1919, the lessors recognized the rights of appellants by their said contract of that date with Seigfried, by the terms of which the lessors bound Seigfried to drill a well on the leased premises to a depth of 3,000 feet, said well to be drilled with pole or accommodation tools; that as a consideration to appellants for agreeing to surrender their lease the lessors were to relieve appellants of drilling obligations, and to deliver to J. B. Beard an oil and gas lease upon 3,960 acres of the leased premises, but' that said lease was never delivered to Beard. Wherefore the consideration for the agreement on the part of appellants to surrender the original lease had failed.
It is further alleged that the offer of the lessors to appellants was upon condition that Seigfried comply with the drilling contract *681Re Rad made with lessors, and tliat Seigfried had never tíomplied therewith. Whereby neither appellants nor lessors were bound; that lessors had directed that the lease of 3,960 acres to Beard be not delivered; that because appellants had placed the rig upon the premises and commenced drilling they were entitled to delivery of the lease. They further allege that, relying on an agreement made by lessors on or about February 4,1919, that the star fig could be used, the appellants had purchased the same at a cost of about $8,000 and also bought extra tools; had said rig shipped from Healdton, Okl., and had with said rig drilled to a depth of 140 feet; that the lessors agreed to delay 10 or 12 days in getting the rig upon the leased premises, and that a standard derrick could be placed on the ground after drilling had been started.
The lessors replied with supplemental petition, by alleging that there was no consideration for the agreements, waiving the requirements of the original escrow contract and lease. They pleaded the two-year statute of limitation, abandonment by the parties of the contract of March 15, 1919, implied rescission of the original escrow contract and lease by appellants’ conduct in getting the lessors and Seigfried into the drilling contract of March 15, 1919.
By second supplemental petition the appellants alleged that the Seigfried contract and the Beard lease were placed in escrow to be delivered only upon condition that Seig-fried should comply with his contract to drill; that Seigfried did not comply; that the lessors, had prevented the delivery of the lease, and were estopped to plead the Seig-fried contract and the Beard lease as constituting an abandonment of the original lease and escrow agreement by appellants. A trial before the court without a jury resulted in a cancellation of the original oil and gas lease, removing the cloud cast upon the lessors’ title by the appellants and the claims of the sublessees. The court filed- its findings of fact and conclusions of law in substance as follows:
(1) The execution of the escrow contract and of the oil and gas lease, as set forth in the petition.
(2) The execution and delivery of' the contract of sublease or transfer between appellants and sublessees.
(3) The nonperformance of obligations of skid contract of sublease by sublessees and of the original lease of March 9, 1918, and of the escrow contract of that date and the mutual abandonment of the assignment contract by the parties thereto, and that the lessors, by acquiescence and entering into other negotiations and contract with appellants, thereafter adopted and ratified such abandonment.
(4) That appellants did not within 12 months place a standard rig on the leased premises, and that the lessors waived the requirements of the original contract as to a standard drilling rig; that appellants placed a star rig upon the premises within the time required by the contract, and in good faith began drilling operationá; that the lessors acquiesced in and permitted the use of said star rig and equipment, and that appellants proceeded with drilling until March 16, to about 195 feet, when they ceased drilling, left the rig and equipment thereon, and have not since resumed operations.
(5) The execution of the contract of March 15, 1919, for the forming of a corporation, etc., between appellants and the lessors, in which the original leased premises, as well as other lands to be procured, were to be used, - the corporation to be known as the Antelope Peak Oil Company; that articles of incorporation were prepared and attempt made to procure additional lands, which failed, the mutual abandonment of the corporation project, and that said contract never became effective.
(6) That after appellants and lessors had mutually agreed to abandon the contract of March 15, 1919, and on May 15, 1919, and at the same time, the Deahls executed the J. B. Beard lease, and placed it in escrow with C. E. Gustavus, and executed the Seigfried contract, the lease to be held by Gustavus pending the performance of the drilling contract between the Deahls and Seigfried. It was understood that it was for the sole benefit of appellants, and Beard was -only the nominal lessee.
(7) That during the negotiations resulting in the Deahl-Seigfried contract, W. A. Miller, Jr., in his own handwriting, made a plot of 9,920 acres described in the lease of March 9, 1918, designating portions to be surrendered to the lessors, also the portion to be described in tkd Beard lease, and the portion covered by the Seigfried lease, that part of the premises going to Beard being marked M, that part to the lessors being marked D, and Seigfried’s portion being otherwise marked, and that the plot became a part of the contracts between the lessors and Seig-fried and Beard.
(8) Seigfried did not begin drilling operations upon that part of the premises leased to him prior to July 1, 1919, and did not comply with his contract.
(9) That W. A. Miller, Jr., wrote the letter dated Wichita Falls, Tex.. June 26, 1919, to C. E. Deahl, one of the lessors.
(10) That the appellants did not pay the lessors any sum of money provided for in the original lease contract of March 9, 1918, nor did Beard or Seigfried pay any sum provided for in the contract of May 15, 1919, for delay in drilling operations.
(11) There was no surrender or forfeiture by appellants of their original oil and gas lease of March 9, 1918, prior to the execution of the lease and escrow contract between the lessors and Seigfried, and the lease con*682tract between the lessors and Board of date May 15, 1919; that appellants demanded the delivery to them of said oil and gas lease after drilling was commenced by them, and that appellants were entitled to the possession of said lease but for the fact that after making such demand and before any delivery thereof they voluntarily entered into other negotiations, to wit, the contract between appellants and sublessees of December 2, 1918, and the Antelope Peak contract between lessors and appellants, of March 15, 1919, and that they thereby waived any right to have said original oil and gas lease delivered to them at that time, and but for the further fact that while drilling operations were suspended appellants, by their own procurement, entered into negotiations with the lessors, which resulted in the Seigfried contract and the Beard lease dated May 15, 1919, all of which negotiations and contracts as a whole constituted one contract, by which appellants are bound, and which is inconsistent with and supersedes and was substituted for the original contract of March 9, 1918.
The court’s conclusions of law are in the main a repetition of his findings of fact, except that in his fifth conclusion of law it is stated that the Deahl-Seigfried contract and the Deahl-Beard lease of May 15, 1919, operated as a revocation of all previous contracts, and were by agreement substituted for the original contract of March 9, 1918, and that the letter from W. A. Miller, Jr., to O. E. Deahl of June 26, 1919, was a legal and binding admission that the contract of March 9, 1918, had been finally terminated, and that by reason thereof appellants were not entitled to a delivery of the oil and gas lease.
[1] The delivery in escrow of the lease to the bank could convey no title to W. A. Miller & Sons until the conditions were performed. Until performance the contract was executory. Priddy v. Green (Tex. Civ. App.) 220 S. W. 243; Blue v. Conner (Tex. Civ. App.) 219 S. W. 533. Performance which would entitle the Millers to possession of the lease and vest title in them must be strictly in accordance with the terms of the escrow agreement. Thornhill v. Olson, 31 N. D. 81, 153 N. W. 442, L. R. A. 1916A, 502, and note, Ann. Cas. 1917E, 427; Frichott v. Nowlin (Tex. Civ. App.) 50 S. W. 164.
The first question then to be considered is,' Has there been any such performance on the part of W. A. Miller & Son as would vest any title to the premises described in the-lease in them? The trial judge found that they did not within 12 months place a standard rig on the leased premises, but that the lessors waived this requirement; that appellants placed a star rig upon the premises, and in good faith began drilling operations, and in effect finds that this was a compliance with the terms of the escrow agreement. There is no dispute as to the facts, but we do not assent to the court’s conclusions of law. The lease is dated March 9, 1918, and is the form commonly known as producers’ form No. 88. The fourth paragraph is as follows;
“If operations for the drilling of an oil or gas well are not begun on said land on or before the first day of March, 1919, this lease shall terminate as to both parties unless the lessee on or before that day shall pay or tender to the lessor or deposit to the credit of lessors, in the First National Bank at Amarillo, Texas (which shall continue as the depository regardless of changes in ownership of the land), the sum of $500.0<>, which payment or tender may be made by the check or draft of the lessee and however made, shall operate to confer on the lessee the privilege of deferring the commencement of said well for six months from said date; thereafter, in like manner, and upon like payments or tenders of said amount, the commencement of said well may be further deferred for additional periods of six months successively, provided always that this lease cannot be kept in force by such payments, in the absence of drilling operations for a longer period than ten years from the date last above set forth,” etc.
W. A. Miller testified, tbat the lessees had never paid any rent or other money consideration for the lease, but that they “took it for test purposes.” The escrow contract which is duly executed by all the parties, is also dated March 9, 1918, and provides for a geological survey of the land, and further provides in part as follows:
“Third. If said geological survey and report should prove favorable, parties of the first part shall place on said leased premises, at such location thereon as they may deem most advisable, a standard drilling rig within a period of twelve months from the date of this contract, and shall begin drilling for oil or other minerals named in said lease contract immediately and shall continue such drilling with reasonable diligence and without delays except such delays as may be unavoidable until a thor: ough bona fide test is made for oil, gas or other minerals named in said lease contract. * * *
“Fifth. As soon as said standard well drilling outfit shall be placed upon said premises and drilling operations begun, then the said oil and gas lease contract hereto attached shall be in force and effect and the same shall be delivered by said First National Bank of Amarillo to the lessees therein named, subject, however, to be avoided and set aside by parties of the second part hereto, should parties of the first part hereto fail or refuse to comply with the conditions and provisions of paragraph 3 of this agreement.”
[2] No other construction can be placed upon the language quoted than that no title should vest in the lessees until a standard drilling outfit should be placed uimn the premises and drilling operations commenced with it. It is conceded that a standard rig, as contemplated, has never been placed upon the premises. Appellant, however, contends that the following instrument, executed by O. E. Deahl, one of the lessors, on January *68325, 1919, was. a waiver of the requirement for a standard rig, and an agreement that drilling might be commenced and continued with a star rig:
“This is to certify that we, the undersigned, G. W. Deahl and O. E. Deahl, entered into a certain lease contract with Will A. Miller & Sons, for oil and gas development on certain lands belonging to said G. W.-Deahl and 0. E. Deahl, and said contract called for one standard rig, for the purpose of drilling for oil and gas. on said land, wherein the said Will A. Miller & Sons agreed to forfeit said lease contract to G. W. and 0. E. Deahl, should they fail to have the said standard rig in operation on or before March 9, 1919, on the said land of G. W. Deahl. On or about January 6, 1919, the said G. W. and 0. E. Deahl, by request of R. A. Blackshear, R. L. MeSpadden and Guy Y. Stumpff, acting in behalf of a syndicate or company to whom the said Will A. Miller & Sons had given a sublease on said land, waived that part of the contract which specified a standard rig and gave their consent that the said R. A. Blackshear, R. L. MeSpadden and Guy Y. Stumpff, representing the parties to whom the sublease had been given, should place upon said land one certain star rig instead of the standard rig, as specified in the contract and begin the drilling on said land with fifteen-inch bit on said star rig, and continue drilling with same until such reasonable time as may be required to transport and place on said land the standard rig as specified in original lease contract made between G. W. and C. E. Deahl, and Will A. Miller & Sons, and that G. W. and O. E. Deahl did grant an extension of time to said R. A. Blackshear, R. L, MeSpadden and Guy Y. Stumpff, representing the parties to whom Will A. Miller & Sons had given a sublease on said land beyond the time specified in the original lease contract of March 9, 1919, which extension of time would be sufficient to enable them to dismantle, transport and erect said standard rig on the above land, said standard rig to be shipped from Claremore, Okl., to St. Erancis, Tex.”
[3] Construing this instrument upon its face, it is simply an extension of the time in which the Millers and their assignees might have to place the standard rig upon the premises. The time granted is such time as will enable them to “dismantle, transport and, erect said standard rig on the above land”; the writing clearly indicating that the rig referred to is at Claremore, Okl. It is admitted that the star rig was inadequate for the purpose of fully exploring and developing the lease. Looking to the facts, it is clear the parties never intended to waive for all time the requirement in the escrow contract for a standard rig. After the execution of the lease, on March 9, 1918, and before any title had vested in the Millers on December 2, 1918, they, in writing, had assigned their rights in part under the contract to R. A. Blackshear andi others, whereby it was provided that the assignees should explore the land. Nothing was done by the lessees or their assignees toward development until the 25th day of January, 1919, when Blackshear and those interested with him, believing that an interest had vested in the Millers, and that it had been acquired in part by them, and realizing that the time for compliance was drawing near, went to Panhandle and consulted with C. E. Deahl, and obtained the foregoing extension contract. Later, on or about the 7th day of February, W. A. Miller, Sr., went to see C. E. Deahl, for the purpose of getting an extension of time for placing the standard rig upon the premises, and was then told by Deahl that the extension had been granted to the assignees. He carried one Meade with him, and testified that after talking the situation over with Deahl he said:
“Mr. Deahl said these parties [Blackshear and others] had already been out there and made a contract with him for the same thing that we were after, to get a star rig and use it until they could get a standard. He didn’t object to the star rig at all. He said the other pai'ties had already been out there, and he had agreed to accept the use of the star rig for the time being as long as they could use it, and get a star rig.”
C. E. Deahl’s testimony with reference to a conversation he had with Blackshear et al. about the star rig, and the contract concerning it, is in substance as follows:
“Now, in regard to the latter part of that contract which refers to dismantling and shipping a standard rig from Claremore, Okl., to St. Francis, Tex., they said they would load the standard rig immediately. That was the next day they would begin to load this rig, and they would ship it out there the next day following; that- is, they would ship it the next day following the day they were talking to me, and would show me a bill of it, and that is the agreement by which I allowed them to put the star rig on, if they would show me billing that it had been shipped to St. Francis. They said they would show me a billing that it had been shipped immediately, but they did not say as to how many days it ought to be in — and they said it ought to be in inside of 8 or 19 days aft-erwards. The standard rig was not shipped to St. Francis and put on my land — if there was ever one shipped I didn’t know it, and never saw the billing that it had been shipped. * * * I never had aqy conversation or writing with Will A. Miller or either of the Millers in which I said anything about relieving them from placing a standard rig on those lands prior to March 9, 1919.”
The contract between the Millers and their assignees bound the latter to procure leases of 8,000 acres additional land, and provided that they should be released from all obligations upon giving to the Millers 30 days’ previous notice of their intention not to fulfill their contract. They failed to procure the additional land, and upon giving the required notice about the last of January, 1919, were released. Our conclusion is that the requirement for a standard rig was not waived by the extension agreement, but that the effect thereof was simply a temperary postpone-*684merit of that requirement.. Neither was the requirement waived by the conduct of the lessors up to the time drilling was commenced with the star rig. Therefore the appellants were not then in a position to demand a delivery of the lease.
[4] The weight of authority is to the effect that the contract specifying the condition upon which an instrument is placed in escrow is not within the statute of frauds; and need not be in writing, but may rest in parol, or partly in writing and partly in parol. Green v. Simpson (Tex. Com. App.) 231 S. W. 375, 21 C. J. 868, § 7. 1 Dev. on R. E. 312a.
[5, 6] The next inquiry is: Have the lessors, since drilling was commenced with the star rig, waived the requirement? It is not asserted that they have expressly waived it, except by the execution of the above-mentioned extension agreement, which we have held is not a waiver. It appears from the record that, after Blackshear and others, as assignees of a part interest under the Millers, abandoned their contract, an effort was made by appellants, with the co-operation of the lessors, to organize a corporation or a joint-stock association, which it was understood should acquire more acreage in that vicinity, and by which development should be prosecuted. It cannot be insisted that this would constitute a waiver on the part of the lessors. It is said that a waiver may be express or implied, but in the absence of an express agreement a waiver will not be presumed or implied contrary to the intention of the party whose rights would be injuriously affected thereby, unless by his conduct the opposite party has been misled to his prejudice into the honest belief that such waiver was intended or consented to. To make out a case of waiver of a legal right, there must be a clear, unequivocal, and decisive act of the party showing such a purpose, or acts amounting to an estoppel on his part; or it must be supported by an agreement founded on a valuable consideration. 27 R. C. L. 909, § 5; Merchants’ Mutual Insurance Co. v. Lacroix, 45 Tex. 158; Dikes v. Miller, 24 Tex. 417; Phillips v. Watkins Land & Mortgage Co., 90 Tex. 195, 38 S. W. 270, 470. It further appears that after the plan to incorporate had failed, the lessors, at the instance and request of appellants, entered into a contract on the 15th day of May, 1919, with O. A. Seigfried. C. E. Deahl testified, with reference to this transaction, as follows:
“After we found that we could not carry out our contract for a corporation, or agreement for a corporation, and that was abandoned, the next matter that was taken up between us and the Millers with reference to these lands was the Seigfried contract. Mr. Seigfried was a Pennsylvania Dutchman. I met him here at Amarillo, and was introduced to him by Will A. Miller, Jr, That Seigfried contract was entered into, I think, the next day after Mr. W. A. Miller introduced me to Mr. Seigfried. It waa immediately after I arrived in Amarillo on the occasion that Mr. Seigfried came in and Mr. Miller introduced him to me at Mr. Miller’s office. When he introduced me to Seigfried he told me who Seigfried was and what he wanted to do. Mr. Miller told me that Mr. Seigfried wanted to go out there and drill that land out, and he was a man we could rely on, and he said he would be glad for us to enter into a contract with Mr. Seigfried. He told us that he was backed up by some big companies, and said he was satisfied he could go ahead and drill this out; that he was representing some company in the East, and said that he could get some leases from this Empire Oil & Gas Company. They had a few leases out there, and he said he could get leases from them to put in with this lease, and he said that he was in with the - close to the Gas & Empire people. Mr. Miller said he was very anxious for us to enter into a contract with Mr. Seigfried, and he said, ‘It is up to you and your father to make a contract with Mr. Seigfried, and we will be very glad to make this contract and go in with the man.’ He said, ‘He can drill this out, and has got timber lands of his own and he has got two different rigs that he can get his hands on in a little bit.’ He was very anxious for us to go into this contract with Mr. Seig-fried. Mr. Miller was present when the contract signed by Seigfried and I was made and when it was signed. Mr. Miller was instrumental in having that contract drawn. It was drawn between Seigfried and us; that is, we gave the contract to Seigfried. My father and I signed the contract to Mr. Seigfried. After this form 88, producers’ lease, which has been read in evidence, was signed, it and the contract was put up in escrow.”
[7, 8] It further appears from the record that 2,000 acres of the original 9,920 acres was transferred to Seigfried, and as part of the same agreement the Millers and the lessors each took 3,960 acres, the acreage set apart to the Millers being, at their request, assigned to J. B. Beard. It cannot be successfully contended that up to the execution of the Seigfried contract the Millers had complied, even substantially, with the original agreement. The appellants’ contention is that, since they did not sign the Seigfried contract or the lease to Beard, under the statute of frauds they cannot be charged thereby, and that the court erred in holding that the Seigfried and Beard leases constituted an abandonment of the original contract, and were substituted therefor. In our opinion the statute of frauds does not enter into this question. The original lease, which is a contract within the statute, is not involved in this issue. It has never been delivered, and appellants have not shown themselves entitled to it. The escrow contract is the one which has been breached, and we have held that it is not within the statute, xt can therefore be modified, rescinded, or abandoned without complying with the statute of frauds, and proof thereof by parol is admissible. 1 Devlin on Real Estate, par. 312a; 13 O. J. 593-595; 1 Black on Rescis*685sion and Cancellation, par. 13; Henry v. Phillips, 105 Tex. 459, 151 S. W. 533; Pearson v. Kirkpatrick (Tex. Civ. App.) 225 S. W. 407; Williams v. Phelps (Tex. Civ. App.) 171 S. W. 1100; Lone Star Canal Co. v. Broussard (Tex. Civ. App.) 176 S. W. 649; Lee v. Durham (Tex. Civ. App.) 156 S. W. 1135; Weeks v. Stevens (Tex. Civ. App.) 155 S. W. 667.
[9,10] It is true that a vested title cannot, ordinarily, be lost by abandonment without full and satisfactory proof of an intention to abandon, but in the instant case no title vested, and none could vest until appellants were entitled to the lease. While no express agreement to abandon and rescind the original contract is shown, the facts are sufficient to sustain the court’s finding that it had been abandoned. Time is of the essence of contracts of this .character. According to the extension agreement, the standard rig should have been placed upon the premises within a reasonable time after March 9, 1919. This suit was not filed until May, 1921. Appellants may, in a measure, be excused for their failure to place a standard rig upon the premises during the efforts of the parties to organize a corporation and to procure Seigfried to explore the property. Under the contract with Seigfried it was his duty to begin operations by July 1, 1919. Upon his failure it unquestionably became the duty of appellants at once to proceed to carry out their contract, and no satisfactory explanation has been made of such failure.
A further fact tending strongly to show a mutual abandonment is the transaction whereby 2,000 acres of the very land in question was conveyed by the lessors to Seigfried. It is reasonably clear from the record that W. A. Miller, Jr., was the moving spirit in this transaction. He found Seigfried at Wichita Falls, brought him to Amarillo, apd at a conference of all the parties called by him the lessors were induced to enter into a valid and binding contract with Seigfried for a part of the very land described in the original lease, and the appellants are now es-topped to claim that said lease, which would give them the same acreage, a part of which they persuaded the lessors to convey to Seig-fried, should be delivered to them. Priddy v. Green (Tex. Civ. App.) 220 S. W. 243, and authorities cited. The Seigfried contract in its terms is inconsistent with the original undertaking between the parties and the rule is that a contract is ordinarily abandoned by the execution of a subsequent contract inconsistent with the first. 3 Elliott on Contr. 10. 13 C. J. 603. Carman v. Harrah, 182 Mo. App. 365, 170 S. W. 388.
[11] Under the original contract the lessors would have been entitled to a royalty of one-eighth; the entire leasehold interest being vested in the appellants. Under the Seig-fried contract- the lessors retained one half •of the land included in the original lease, less 2,000 acres, and the appellants the other half of such remainder. The original agreement required that the drilling should be done with a standard rig. Under the Seig-fried contract the land might be explored with a star rig. Appellants contracted to sell him the rig they had on- the premises. There are other material differences that render the obligations of the parties under the several contracts inconsistent and repugnant. The Seigfried contract, if not conclusive, is a persuasive fact showing abandonment, and it is no sufficient answer to this to say that Seigfried did not perform. A failure to perform the substituted contract does not revive the original one. 13 C. J. 596, 597. On June 26, 1919, W. A. Miller, Jr., wrote a letter from Wichita Falls to C. E. Deahl, as follows:
“I am just in receipt of your letter of the 24th, written in Amarillo, in regard to a release which it seems that Mr. Seigfried and Mr. Davidson, his attorney, wishes us to sign, and, replying thereto, I will say that I explained this matter to Stuart and also to Judge Gustavus. We have no claim on any portion of the land of course excepting the land which we are getting from you and your father under the Seigfried contract. The lease, which is in escrow in the First National Bank under our agreement, is canceled and held for naught under the agreement that we made with you and your father at the time you accepted the Seigfried contract. Mr. Hall, one of Mr. Seigfried’s partners, has been here to see me, and explained to me the whole thing truthfully. Seigfried is not playing for a release, but for more time. Hall and others are refusing to put up the money; that is all that is the matter with Mr. Seigfried; there is nothing for us to sign whatever. We are to take the lease up for the 3,920 acres now in the hands of Judge Gustavus in escrow and return you the lease to the 9,920 acres, executed by you and your father March 4, 1918. I am sure that Judge Davidson understands this matter, and I am doubly sure that Mr. Seigfried understands it, and we are willing to sign anything to clear the matter up. The mistake was made when your father, against our wishes, accepted Seig-fried’s contract with a $200.00 forfeit. If you will remember, you and I both objected to it, but your father said he knew what he was doing, and that Seigfried would comply, and accepted it with only $200.00 as a guaranty, which I considered then, and do now, as nothing. I explained to Mr. Seigfried that we would cancel everything as soon as he complied with his contract. He understands this thoroughly. He has stalled us, and in every way in the world. We have instructed Mr. Hall to see Mr. Seig-fried to-day on his return to Amarillo and try to get him to get busy and start the work. An affidavit by you to the effect that the former lease was not complied with is all that is necessary for Mr. Seigfried. We cannot release something which we do not possess, and Mr. Davidson is asking us to give a release to you or any one covering the léase in the First National Bank when there is a written agreement whereby that lease is canceled, having never been recorded. My father is very sick at Mar*686lin; we are expecting to bring him home within the next few days, and I perhaps will be in Amarillo the first part of next week and will take this up with you. I am exceedingly anxious to see something done. I have made every concession to you and to your father and to Mr. Seigfried in order to get this matter going, and I stand ready to-day to do anything consistent with good business to get the work started in the Antelope Peak Pasture, but I still insist that the little forfeiture which your father accepted with Seigfried looks like failure on Seigfried’s part. I will call you up the very minute I get an opportunity from Amarillo. With kind personal regards, and hoping, that we may get some development started, I beg to remain,” etc.
Miller, Jr., testified that the date of the contract as stated in his letter should have been March 9th instead of March 4th. It is difficult to see how the trial judge could have arrived at any other conclusion than that the contract was abandoned after reading the foregoing letter in the light of all the surrounding circumstances. W. A. Miller, Jr., testified;
“At the time when these negotiations were had with Seigfried, the Antelope Peak Oil Company was abandoned by all parties. There was no way for me to go on, and the Deahls would not go on unless they got some of this acreage back, and I then had to get the Seigfried proposition up and give them part of the acreage in order to get it drilled out.”
The Deahls testified that on the night of May 15, 1919, after the parties had‘finished the Seigfried and Beard contracts, one of them spoke about remaining over in Amarillo until the'next day to get the original lease and escrow agreement out of the bank, that V. A. -Miller, Jr., stated that it made no difference, “as those papers were null and void and would do nobody any good or harm,” and that he considered they were of no value to any one. This testimony is not denied. Miller, Jr., further testified:
“That lease contract with J. B. Beard was put up in escrow, and I presume it is still in escrow. I have asked for that to be delivered to me, the J. B. Beard contract that was put up in escrow, I think I made demand upon Deahls for that; I think I asked Ed Deahl for that, and perhaps wrote a letter in regard to it. That was soon thereafter, but I do not remember the.dates. It was after the 1st of July I know.”
It will be recalled that Seigfried bound himself to begin drilling about the 1st of July. The fact that W. A. Miller, Jr., demanded the delivery of the Beard contract, conveying 3,960 acres of the original leased premises to him, after the 1st of July, and when Seigfried had breached his contract by commencing to drill, ⅛. inconsistent with his contention that he Ahsidered the- original contract still in force, and that his rights are in no way affected by the transaction which resulted in the Seigfried and Beard contracts. We have not considered the propositions as presented in detail, but what we have here-inbefore said we think disposes of the main contentions presented.
The judgment is therefore affirmed.
^jc^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes