Suit was brought by Conant against C. M. Jones and his son, Virgil Jones, for breach of contract. The petition alleged, that by written contract under seal, C. M. Jones had given to Conant and Virgil Jones the right, from August 23, 1901, to May 15, 1904, to enter upon certain lands and to mine, remove, and sell any or all of the graphite deposited thereon. By the same contract the lessees undertook to pay the lessor a royalty of 10 cents per ton upon the graphite which they removed, and agreed that “ if for any cause said lessees fail to pay the lessor royalties less than the amount of $200 during either one of the years for which this lease may run, working or not, then this lease may be declared by said lessor null and void.” It was further stipulated that the lessees had the right, at any time during the term of the lease, to cancel the same by paying the lessor $3,500, for which the lessor bound himself to make them title to all of the graphite upon the lands, with the right to enter the lands and mine and remove the graphite. According to the petition, Conant owned a half interest in this lease and option. Charging collusion between the two defendants, the petition alleged, that C. M. Jones had, in March, 1902, sold the mineral interest in the leased lands to the Cherokee Chemical Company; that the lease and option had never been recorded, and the Cherokee Chemical Company refused to recognize its validity; that C. M. Jones, at or about the same time, sold a part of the land to Virgil Jones, who sold it to the Cherokee Chemical Company; that before the expiration of the first year of the lease, petitioner tendered $200 as royalties to C. M. Jones, but the latter refused to accept it, though he had never attempted to forfeit or avoid the lease; that this constituted a breach of the contract, for which petitioner prayed damages in the amount of $10,000. The defendants, without admitting the contract as it was set out in the petition, pleaded a release of the contract into which they had entered with petitioner, alleging that Conant and Virgil Jones, on August 27, 1901, a few days after the execution of the contract, signed a written release, attested by two witnesses, and that the lessor had by a written entry upon the same paper accepted the same and released'his lessees from all liability.
On the trial the plaintiff proved the execution of the contract set out in the petition. He testified, that he and Virgil Jones
Judgment affirmed.