This suit was brought to cancel six oil, gas and mineral leases, all being identical in' form, except for the names of the lessors, dates, depository for rentals, amount of rentals,- acknowledgments and description of the land covered in each, the printed form- of each lease being designated as "Producers' 88 Revised — Texas Standard.” Appellees, J-. Dr Norris and wife and five of tlieir neighbors, A. R. Hahn, J. D. Wright,. Sybil Hudson, Claud Luker and ■J. F. Walter, were owners and lessors, respectively, of the - six tracts of land covered in the leases, and H. A. Wysong •was- lessee- in- each lease. Five of the leases were- dated March 25, 1949 and the sixth was dated March' 30, 1949. Immediately following the description of the land covered in each lease was this typewritten clause: “As further consideration for this lease, lessee agrees to begin actual drilling operations by July 15, 1949 in the block of acreage of which this lease is a 'part, or this lease 'shall be null and void.” H. A. Wysong assigned each lease to W. J. Brightwell. . Appellees sought cancellation of the leases upon the ground, among others, that drilling operations were not begun by July 15, 1949 in the block of acreage of which each lease was a part.
The case was tried before a jury. Upon the conclusion of the evidence all parties presented motions for a peremptory instruction. These motions were overruled and the case was submitted to the jury on two special issues. In response to the issues submitted the jury found (1) that there was an agreement between Wysong and appellees at the time the leases were signed as to what leases constituted the block of acreage on which a well was to be drilled by July 15, 1949 a-nd (2) that the well was not drilled on the block as agreed upon by the parties. Thereupon the court rendered judgment cancelling' the leases and decreeing each to be null and void.
Under the several points in their brief appellants say the court'. below erred in refusing to instruct the jury to return a verdict in their favor and, in overruling their motion for judgment non obstante veredicto because the agreement of lessee to begin drilling operations by July 15, 1949 “in the block of acreage of which this lease is a part” was and is too indefinite and uncertain “to constitute a valid contract, but is void for uncertainty”; because the evidence in the case shows there was no definite understanding between lessors and lessee at the .time the leases were executed as to the specific block of acreage of which.each lease was to be a part and consequently they insist that such agreement was void for uncertainty and for a lack of mutuality; and because ap-pellees, by accepting the 'annual rentals deposited in March of 1950 to their credit 'in the depository specified in each lease, waived any right they might have had to cancel the leases and each thereby became *203 estopped from claiming that the leases were invalid on the ground herein asserted.
The undisputed evidence shows that each; lease in controversy was prepared by H. A. Wysong. He and his associates had' been operating in the general vicinity of Lott, Texas, for spme time prior to March 25, 1949. They had drilled two wells without the discovery of oil or gas. In August of 1948 Ed Good had executed an oil, gas and mineral lease to Wysong and others as lessees, covering 173 acres of land in the vicinity of Lott but this lease did not obligate the lessees to drill on the leased premises or elsewhere. After March '30, and before July 15 of 1949, Wysong began drilling operations on the Good lease and completed a dry hole. The testimony on,, behalf of appellants tends to show that the Good lease was a part of the block acreage in which the lessee agreed to begin drilling by July 15, 1949, as' affirmatively alleged by appellants, within the contemplation of the parties to the six léase agréements here in controversy, while the testimony on behalf of appellees tends to show the contrary. Although the block of acreage in which Wy-song obligated himself to' drill a well was not described or defined in the written lease agreements prepared by him, we; think the evidence as a whole was sufficient to sustain the findings of the jury with respect thereto.
Furthermore, after due consideration of the entire record, we have concluded that.the trial court did not err in refusing to instruct ;a verdict for appellants or in overruling their motion for judgment non obstante veredicto, even though the, agreement of lessee to begin drilling operations by July 15, 1949 “in the block of acreage of which this, lease is a part”, be regarded as void for, uncertainty or for'a,lack of mutuality.
The first numbered ■ paragraph in ■ each lease agreement .provides- that “lessor in consideration' of' One . & .00/100 Dollars ($1.00), in hand paid, of the royalties herein provided, ánd of the ■ agreement., of lessee herein'. ■ contained,.. hereby grants, leases and lets,”.>for the'purpoáes', .therein set forth, the land described therein by-metes and bounds, with the additional proviso that lessee agrees, as further consideration for the lease, to begin actual drilling '.operations by July 15, 1949 “in the block of acreage of which this lease is a part, or this lease shall be null and void.'”' Paragraph 5 in each lease provides in substance that if operations for drilling are not commenced on the particular tract of land described by metes and bounds in the lease within one year from the date thereof' the lease shall terminate unless the lessee shall pay dr deposit .to the credit of lessor in' the depository therein named a sum of money equal to one dollar per acre on the totai number of acres covered in the' lease, such payment or deposit to confer upon lessee the privilege of deferring commencement of drilling operations on that particular tract of land for an additional period of twelve months, and that in like manner drilling operations may be deferred fdr successive periods of twelve months for a total period of ten years'. '
It is quite clear from all the evidence in the case that the unconditional promise on -the .part .of lessee to begin actual drilling operations by July 15, 1949, ip the block of acreage of which each lease was, to be a part constituted the inducing consideration which caused each of the lessors to sign and deliver the lease agreements in controversy. Lessors wanted a well to be drilled in the immediate vicinity of their lands and each testified without dispute that but for the promise of lessee to drill such well as contained in the lease agreements they would not- have signed the same..- H. A. Wysong testified iri -effect that he knew the lessors were relying upon .his unconditional promise-to begin drilling operations by July 15, 1949, in the.block,of •acreage- of which each'lease was:to be .a part and that' he placed. such ■ promise in each • lease for the purpose • of inducing each lessor to sign and deliver-the same.-to .him.- Hence, it. appears to us .that;.-sjjch ■written promise must be, regarded under the, circumstance's.) of this -case; .as an-.ins-.slépafable \part oi. each' leajs.e agreement ,in itslentirety and.aS'an indispensable element *204 in' the -agreed consideration for the execution of each lease.
In the case of Raywood Rice Canal & Milling Co. v. Erp,
Appellants insist that the case of Mitchell v. Simms, Tex.Com.App.,
Waiver is generally said to be the intentional relinquishment of a known fight or such conduct as to warrant ah inference to that effect. 43 T.J. p. 891, Sec. 2 and authorities. In our opinon, when the lessee failed to begin actual drilling operations by July 15, 1949, as he had expressly agreed in each lease to do, each lease automatically terminated and ceased immediately to have any further legal force or binding effect upon the parties thereto. W. T. Waggoner Estate v. Sigler Oil Co.,
Because we are of the opinion that the trial court did not err in refusing to instruct a verdict for appellants or in overruling their motion for judgment non obstante veredicto, all of the points of appellants are overruled and the judgment appealed from is affirmed.