STRASSER et al. v. BULKLEY, 194 F. 355

DAYTON, District Judge (after stating the facts as above). The decision of this case must practically be based upon the construction to be given the terms of the original and supplemental contracts between Strasser, Watkins, and -Heerlein and Bulkley and Brown and the last contract (that of alleged acceptance) between the trustees and Bulkley and Brown.

The learned judge who tried the case below directed a verdict for defendant upon the theory that this last contract by its terms was inconsistent and, that by reason of its last clause, in practical effect constituted the agreement to be an indefinite extension of the option.

Without discussing whether or not this construction is correct as between the parties to it, we must not overlook the fact that Strasser, Watkins, and TTeerlein were not parties to it, and therefore it' is only pertinent, as regards their rights and interests, in so far as it may, or may not, be held to be an “exercise” or acceptance under their contracts with Bulkley and Brown by which, alone, they are bound.

Turning to these two contracts, we must concede, in fact it is not denied, that at the time the first one was executed they had, for a limited period, a vested right in and to the coal field in controversy, and that, in consideration of the surrender of this right and the agreement on their pari that Bulkley and Brown might secure at once from the trustees a new option direct to themselves, Bulkley and Brown agreed that, in the event they should “exercise” their option, the)'’ would pay to them $4 per acre for each and every acre “so taken” thereunder.

It might well be a matter for discussion as to the construction to be placed upon the words “exercise” and “so taken” if they were subject to no further explanation than that afforded by their itse alone in this contract, but it is vital in this connection to bear in mind that by the subsequent agreement, entered into March 12, 1903, the parties have removed all question as to their meaning in the use of these terms, for, in this last contract, the language is, “if said second, parties hereto elect to purchase from said trustees or owners the coal lands,” then Strasser, Watkins, and lleerlein were to have their compensation.

To “exercise” the option might be held to require a complete purchase and full taking over of the title, hut the words “elect to purchase” can be given no such meaning. To elect to do a thing and to actually do it are entirely distinct processes. We are to hear in mind that this contract, providing for election only, was the last and final one between the parties. Did Bulkley and Brown “elect to purchase” these coal lands? We think clearly so by their contract of August 31, 1903.

They over and again say so therein, and the clause which the court below held to be inconsistent with such election only relieved them from claim for damages on the part of the trustees in case they financially failed in ability to do what they thereby elected to do. There was no release by Strasser, Watkins, and lleerlein of this right to demand compensation upon their election to purchase.

It necessarily follows that the court below erred in directing the verdict and entering the judgment complained of and that such judgment must he reversed and the case remanded with directions to set aside the verdict and award a new trial. As this case is remanded for further proceedings therein to be had, we deem it proper to call the attention of the court below to the contract dated August 24, 1909, between I,. S. Strasser, Thomas C. Watkins, and Robert Heerlein and O. E. Reinhardt and Matthew R.

Brooks, with the suggestion that it is worthy of consideration as to whether or not the same is champertous in character. Reversed.