This wаs an action by the defendant in error (herein called plaintiff) to recover damages for the breach of a written contract between him and the plaintiff in error (herein called defendant). By the contract sued on plaintiff assigned to defendant an oil and gas lease on a described 45-acre tract of land, subject to oil and gas royalties reserved to the lessor landowner аnd to plaintiff. That contract contained the following provisions:
“It is further understood and agreed thаt, in consideration of this transfer of the first party’s interest in said lease, the second party shall within 50 days frоm the date hereof erect a derrick, and shall within 100 days from the date hereof begin the drilling of a wеll for oil and gas on the 45 acres of land above described, and continue said drilling with reasonable diligence and dispatch until the said well is completed to the producing sand of this district, unless oil and gаs are found in paying quantities at a lesser depth. * * * Time is the essence of this contract, and the sаme shall be null and void and of no effect unless said party of the second part shall begin the drilling of thе well as provided however, on or before 100 days of the date hereof.”
After the execution -of the contract the time for beginning the drilling of a well was, for a valuable consideration reсeived by plaintiff, extended 30 days. The petition alleged that defendant erected a derrick on the leased land, but wholly failed to drill a well thereon. Pursuant to a written stipulation of tho parties the ease was tried by the court without a jury. The court made the following findings:
“(1) The court finds that partios entered into the contract declared on in plaintiff’s petition as alleged therein.
“(2) Tho court finds that defendant breached the contract, as alleged in plaintiff’s petition, and that plaintiff is entitlеd to recover damages heroin for the amount of the reasonable value, of cost оf drilling a well on the land described in plaintiff’s petition, less the reasonable cost or value of thо salvage or material that could bo saved therefrom, and less tho reasonable value оf the derrick ereeted on the 45 acres leased by the defendant, and that the amount which plaintiff is entitled to recover, after making duo allowance for the items last above mentioned, is the sum of $19,500. * ” *
“(3) The court finds tho evidence disclosed no material difference in the value of the 45-acre lease at the time the contract was made, and at the time of the breach thereоf by the defendant, the time of said breach being at the end of the 130 days from the date of said contrаct, which includes the 100-day period of the original contract and the 30 days’ extension granted by the рlaintiff.”
The rulings of tho court that plaintiff was entitled to recover, and as to the measure of damаges recoverable, are duly presented for review.
In behalf of the defendant it was contended that the plaintiff, on tho facts found, was not entitled to recover as damages an amount ascertained in the manner adopted by the court. By the contract the plaintiff acquired the right tо have a well
drilled by
defendant on
the
leased land as stipulated. A result of defendant’s failure to do what it contracted to do was to make it liable to the plaintiff for the amount of the reasonable cost of hаving that done
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which the defendant obligated itself to do. .The plaintiff’s right to ¡recover the amount of thе reasonable cost of that to which the contract entitled him was not dependent on his proving that the value of the lease, or ■of plaintiff’s interest therein, would have been enhanced if dеfendant had drilled a well pursuant to the contract. Lawton v. Fitchburg Railroad Co., 8 Cush. (Mass.) 230,
Evidently the provision that the contract “shall be null and void and of no effect .unless” defendant shall begin the drilling of the well -within the stipulated time was not intended to be one for liquidated damagеs. The language used fairly imports a penalty for a specified breach of the contraсt by the defendant. Brown-Crummer Co. v. W. M. Rice Const. Co. (C. C. A.)
• The conclusion is that there was no error in the rulings complained of. The judgment is affirmed.