Davis v. Bussey

On Appellant’s Motion for Rehearing.

Notwithstanding appellee never commenced drilling a well on the land, and never paid anything as rental thereon, and notwithstanding the provision in the stipulation set out in the opinion of this court heretofore filed that the lease should “terminate as to both parties,” if the drilling of a well on the land was not commenced on or before January 27, 1921, unless the lessee on or before that date paid the rental specified, appellant insists in his motion, as he did in his brief when the record was first before us, that he nevertheless had a right to demand and receive such rental of appellee, and that it was error to hold he had “forfeited” such right. This court did not so hold. What it held was that appellant had no such right to forfeit — that appellee was not bound to pay the rental; and, if he chose not to pay it, as he did, the contract thereupon terminated as to both parties as provided therein, so that ap-pellee had no right thereafter, by force of that contract, to pay the rental, and appellant had no right thereafter, by force thereof, to demand and. receive same.

The motion is overruled.