$1000. Explanation: The understanding and agreement in regard to the test-well being that plaintiff is in no event to receive exceeding the sum of $500." The first well, an old one, failed to produce oil. The second produced more than fifteen barrels a day for thirty days. Defendant claimed, as a defence to an action of assumpsit, that the use of the words “in like manner" and "further" indicated that the sum to be paid upon the production of the second well was dependent upon the production of the first, and that, having failed, nothing was payable on the second.

Held, that the sums to be paid under the agreement were in the nature of a bonus to be paid upon the production of the wells, and that lessee was bound for the payment on the second well, though the first produced nothing. Judgment on special verdict for $1000, with interest. Brushwood Developing Co. vs. Hickey, 2 Mon., 65 (1888), Sup. Ct. Pa., S. C., 16 Atl. R., 70.

Sec. 108.

The owner of a farm made leases for oil purposes, reserving as royalty one-eighth of the oil produced. His son, who was of full age and lived on the farm with his father, was joined as co-lessor. The oil reserved as royalty was delivered to the father and his vendees. Held, in an action by the son against the lessees to recover one-half of the royalties, that defendants might show the circumstances under which plaintiff signed the leases, not to deny the landlord's title, but to deny that, as to the son, the leases created that relation. Swint vs. Mc Calmont Oil Co., 184 Pa., 202; S. C., 38 Atl. R., 1020 (1898).

Sec. 109. Uncertainty of Description - In construing Leases, the Courts Lean Towards the

Party of the Second Part.

An owner of three adjoining tracts of land, each containing forty acres, leased one acre thereof, to be designated by himself, and in the lease it was "agreed on the part of the party of the first part that if oil or gas be obtained by the second party or assigns*** upon said tract, or on lands adjoining the same premises of which the foregoing one acre described embraces a part, said second party shall have the right to operate forty acres of the balance of said premises on the same terms as above." Held, that the forty-acre tract out of which the one acre was thereafter selected by the party of the first part, is the forty acres to be operated under the contract. Further, the party of the first part, having selected the one acre upon which such well was to be drilled and the second party having acted thereon, the first party is bound thereby, and cannot make a second selection. Stahl vs. Van Vleck, 53 Ohio St., 136 (1895).

Sec. 110.

Modification of Lease by Parol Agreement. Per TRUNKEY, J.:

"Verbal agreements, made between the parties, before or at the time of the execution of a written contract, are considered as merged therein, and in general are inadmissible to vary its terms. But an oral agreement, subsequently made, on a new consideration, and before the breach of the contract, in cases falling within the general rules of the common law, and not within the statute of frauds, may have the effect to enlarge the time of performance specified in the contract, or may vary any other of its terms, or may waive and discharge it altogether, and thus make a new contract.' Wilgus vs. Whitehead, 89 Pa., 131 (1879); citing Emerson vs. Slater, 22 Howard, 28; Munroe vs. Perkins, 9 Pick., 298; McComb vs. McKennan, 2 W. & S, 216.

Sec. 111. Differing Instruments and their Equivalents.

A written contract, though not under seal, granting the privilege of digging all the coal or ore on the vendor's land, is equivalent to a conveyance of the title to the coal or ore in fee. But the rights of parties to oil leases are distinguished from those of parties to coal leases by reason of the difference in the nature of the two minerals and the manner of their production. Plummer vs. Coal & Iron Co., 160 Pa., 483 (1894).

This is an important case from several standpoints, which will be noticed under their respective heads, but entitled to early mention because of the above distinction, which is clearly drawn, and which should be borne in mind in the examination of the general subject.

Said WILLIAMS, 7., speaking for the court:

"The difference in the nature of the two minerals and the manner of their production has resulted in considerable differences in the forms of the contracts or leases made use of. When oil is discovered in any given region, the development of the region becomes immediately necessary. The fugitive character of oil and gas, and the fact that a single well may drain a considerable territory, and bring to the surface oil, that when in place in the sand rock, was under the lands of adjoining owners, makes it important to each land-owner to test his own land as speedily as possible. Such leases generally require for this reason that operation should begin within a fixed number of days or months, and be prosecuted to a successful end or to abandonment. Coal, on the other hand, is fixed in location. The owner may mine when he pleases regardless of operations around him. Its amount and probable value can be calculated with a fair degree of business certainty. There is no necessity for haste nor moving pari passu with adjoining owners. The consequence is, that coal

leases are for a certain fixed term, or for all the coal upon the land leased, as the case may be."

Sec. 112. Agreement Purporting to be a Lease in Effect a Sale.

A entered into a written agreement with B, "leasing" to him "all the coal beneath the surface of a certain tract of land," B covenanting to mine a minimum number of tons annually, and to pay therefor a royalty. Failure to pay for thirty days was to give the "lessor" the right of distress, and for sixty days, the right of forfeiture and re-entry. The so-called lease was made "perpetual until all the coal is mined." B covenanted to pay all taxes on coal mined. In an action by B against A to recover taxes levied on the coal in place, and paid by B under protest,

Held, that the agreement was not a lease, but an absolute sale of the coal in place, and operated as such a severance of the surface and subjacent strata as would render the vendee liable for all taxes levied upon the coal in place, and would relieve the vendor from liability for the same. R. R. Co. vs. Sanderson, 109 Pa., 583 (1885). Following Sanderson vs. Scranton, 105 Pa., 469 (1884).

The following coal cases, distinguished from oil in Plummer vs. Coal & Iron Co., 160 Pa., 492, may, nevertheless, be noted:

The fact that an instrument is in the form of a lease is not material when the character of the transaction is apparent. Kingsley vs. Hillside C. & I. Co., 144 Pa., 613 (1892). (1892). Montooth vs. Gamble, 123 Pa., 240 (1889).

A written contract, though not under seal, granting the privilege of digging all the coal or ore on the vendor's land is equivalent when the purchase money has been paid, to a conveyance of the coal or

ore in fee. Fairchild vs. Furnace Co., 128 Pa., 485 (1889). Armstrong vs. Caldwell, 53 Pa., 284 (1867).

Sec. 113. Acceptance of the Terms and Conditions of an Instrument may be Established as Well by Acts as by Signing and Sealing.

Where an agreement to mine iron ore was signed and sealed by the grantor, and also by the grantee by his agent, and there was no sealed authority by the grantee to the agent nor an adoption of the seal, nor a ratification of it by a sealed instrument, it was held that the deed was not that of the grantee, and none of its covenants his covenants; but that the grant having been accepted by him, it bound him to the same extent as if he had personally signed and sealed it-only the mode of enforcing the obligation was different.

A chancellor will not enforce a contract which is one-sided; but he will interfere at the suit of a complainant who has discharged his part before the undertaking of the defendant was made, or contemporaneously with it.

The consideration for a deed of bargain and sale must be a valuable one; but it need not be expressed in the instrument if a consideration be averred, and parol evidence may be given to show what passes from the grantee. Grove vs. Hodges, 55 Pa., 504 (1867).

Sec. 114. Further as to Parol Evidence.

In an action upon an oil and gas lease for rentals due on account of defendant's not having commenced to drill within the time specified, when it appears that the lease sued upon was given by the lessor to