and meaning which it was intended should be given thereto. The court has no right to fractionize the contract or divide it up into sections, and say that the cash bonus supports any particular covenant to the exclusion of another, when such construction would be contrary to the clear intention of the parties as gathered from the face of their written agreement. The conclusion that the cash bonus paid upon the execution and delivery of the lease supports each and all of the terms and conditions contained therein, including the surrender clause, is sustained by all the courts except in those cases where

reason that the surrender clause therein ambiguous should not be given that effect contained gave to the lessee the option to terminate same at any time. Kolachny v. Galbreath, 26 Okl. 772, 110 Pac. 902, 38 L. R. A. (N. S.) 451. And has also held that such contracts will be strictly construed against the lessee. Kolachny v. Galbreath, supra; Frank Oil Co. v. Belleview Oil Co., 29 Okl. 719, 119 Pac. 260, 43 L. R. A. (N. S.) 487. These holdings are far from saying that such contracts are void when based upon a consideration. In the Hill Oil & Gas Co. Case, the rule was correctly stated that "contracts unperformed [without sufficient consideration], which are optional as to one, * are optional as to both." This statement implies a clear recognition of the validity of an optional contract when based upon a sufficient consideration. In none of the

previous decisions of this court involving either an "or" lease or an "unless" lease is there any support found for the contention that the presence of a surrender clause in a lease based upon a sufficient consideration, which has been executed voluntarily by parties capable of contracting, and which is free from any of the elements that render a contract void or voidable, confers upon the lessor a corresponding right to forfeit the lease at his option without any agreement to that effect and without the payment or promise of payment of any consideration therefor.

a nominal consideration was rendered and was held insufficient. Allegheny Oil Co. v. Snyder, 106 Fed. 764, 45 C. C. A. 604; Brewster v. Lanyon Zinc Co., 140 Fed. 804, 72 C. C. A. 213; Guffey v. Smith, 237 U. S. 101, 116, 35 Sup. Ct. 526, 59 L. Ed. 856; Pittsburg, etc., Brick Co. v. Bailey, 76 Kan. 42, 90 Pac. 803, 12 L. R. A. (N. S.) 745; Poe v. Ulrey, 233 Ill. 56, 84 N. E. 46; Watford Oil & Gas Co. v. Shipman, 233 Ill. 9, 84 N. E. 53, 122 Am. St. Rep. 144; Central Ohio Natural Gas & Fuel Co. v. Eckert, 70 Ohio St. 127, 71 N. E. 281; Brown v. Fowler, 65 Ohio St. 507, 63 N. E. 76; Lowther Oil Co. v. Guffey, 52 W. Va. 88, 43 S. E. 101; Lovett v. Eastern Oil Co., 68 W. Va. 667, 70 S. E. 707, Ann. Cas. 1912B, 360; South Penn. Oil Co. v. Snodgrass, 71 W. Va. 438, 76 S. E. 961, 43 L. R. A. 848; Pyle v. Henderson, 65 W. Va. 39, 63 S. E. 762; Gillespie v. Fulton Oil Co., 236 Ill. 188, 86 N. E. 219; McMillan v. Phila. Co., 159 Pa. 142, 28 Atl. 220.

It would be manifestly inequitable to permit the lessor who has entered into a con

substantial consideration therefor to retain that consideration, avoid the lease, and deprive the lessee of the privilege or option which it has purchased and paid for. I am therefore of the opinion that the presence of the surrender clause in the lease involved did not render it void for want of mutuality and did not confer on the lessor the right to terminate the lease at will, and that the judgment of the trial court should be and the same is hereby reversed, and this cause remanded. All the Justices concur, except OWEN, J., concurs in conclusion; TURNER, J., not participating.

Development was not the sole consideration for the lease. The bonus of $160 supported each and every term, including the right to postpone development upon paying a stipulated rental in conformity with the covenants of the lease, and the option to surrender upon paying the stipulated sum of $5. The lease was for five years and as long thereafter as oil and gas were found in pay-tract that is free from fraud and received a ing quantities, the lessor agreeing to commence a well within 12 months, or in lieu thereof to pay the stipulated rentals. Of course, if no cash bonus had been paid, development would be the sole consideration. Such is the holding of the courts where there was no cash bonus, or where the consideration was nominal and was disregarded. Also, if there had been no agreement to delay drilling beyond a period of one year, then the court might say that unless the premises were developed within that period the lease might be terminated. But here the parties have expressly agreed for a good and sufficient consideration that the lessee may postpone development upon the payment of a certain sum of money. This condition was doubtless suggested by the undeveloped condition of the district in which the leased premises are situated and by the risks incident to exploring for oil and gas. This covenant was satisfactory to the lessor at the time, and we know of no reason why the deliberate agreement of the parties expressed

KANE, J. I concur fully in the conclusion and reasoning of the court as stated in the opinion just handed down. I wish, however, to further support my concurrence by reference to the additional reasoning and authorities to the same effect contained in my dissenting opinion in the overruled case of Brown v. Wilson, 160 Pac. 94, L. R. A. 1917B,

Error from District Court, Pontotoc Coun- in Brown v. Wilson, 160 Pac. 94, L. R. A. ty; J. W. Bolen, Judge.

der of performance supplies the want of mutuality. Pomeroy on Contracts, § 170; Elliott on Contracts, § 2281; Western Timber Co. v. Kalama River Lumber Co., 42 Wash. 620, 85 Pac. 338, 6 L. R. A. (N. S.) 397, 114 Am. St. Rep. 137, 7 Ann. Cas. 667; Perry v. Paschal, 103 Ga. 134, 29 S. E. 703; O'Brien v. Boland, 166 Mass. 481, 44 N. E. 602; Ullsperger v. Meyer, 217 Ill. 262, 75 N. E. 482, 2 L. R. A. (N. S.) 221, 3 Ann. Cas. 1032; West v. Washington Ry. Co., 49 Or. 436, 90 Pac. 666; Law v. Smith, 68 N. J. Eq. 81, 59 Atl. 327.

& Gas Co. v. Mehlin, 25 Okl. 809, 108 Pac. 545, 138 Am. St. Rep. 942; Hill Oil & Gas Co. v. White, 53 Okl. 748, 157 Pac. 710. And has refused specific performance of an oil and gas mining lease containing such surrender clause. Kolachny v. Galbreath, 26 Okl. 772, 110 Pac. 902, 38 L. R. A. (N. S.) 451. And also refused such relief where a lease required the payment of certain rentals for failure to develop, and further provided that a failure to commence operation or pay should render the lease null and void. Warner v. Page, 159 Pac. 267. But in none of these cases was the situation here presented From these authorities we understand the involved or considered. By the above-quoted rule to be that the question whether mutuprovision, it was stipulated that upon the fil-ality of remedy exists in order to entitle ing of an action in any court of law or plaintiff to specific performance must be deequity, the surrender clause and the option termined at the time of filing the bill, and therein contained should cease and become that an offer of performance by the party absolutely inoperative. This provision was commencing the action creates mutuality of voluntarily agreed to for a consideration suf- remedy and gives to the court jurisdiction ficient in law and satisfactory to the parties and power to render a decree that will be and should be given effect unless it contra-operative against both of the parties. The venes some rule of law. Instead of doing this, it is in keeping with the holding of this court in Kolachny v. Galbreath, supra, where it was held that the option to terminate the lease at any time deprived the plaintiff of the right to specific performance, until he had performed the contract or placed himself in such a position that he might be compelled to perform. This statement of the rule was reaffirmed in Hill Oil & Gas Co. v. White, 53 Okl. 748, 157 Pac. 710, and Warner v. Page, 159 Pac. 264. These decisions recognize the rule that specific performance will be denied unless, first, the lessee has performed, or, second, has placed himself in a position where performance by him could be compelled. This is the position in which plaintiffs say they have placed themselves, and urge that by their act of commencing | this suit they have waived the surrender clause and thereby become bound for the rentals during the entire term of the lease in case a well should not be completed by them. It is a well-established rule of equity that specific performance may be waived in that class of contracts in which one party was not originally bound or against whom the equitable remedy could not be obtained where such party by his subsequent acts, omissions, or assent waives the objection of want of mutuality and places himself in a position that performance by him may be compelled, and in such cases he may thereafter claim and enforce specific performance against the other party. Pomeroy on Contracts, § 171; Elliott on Contracts, § 2281. The most common application of this rule is where the statute of frauds requires a memorandum to be signed by the parties. In such case a party not signing may have specific performance against the party who signed by filing a bill therefor and tendering performance OWEN, J., concurs in the conclusion.

defendant was bound by the terms of the contract, and, if lack of mutuality in remedy existed, the plaintiffs have bound themselves by filing the bill and offering to perform. Having submitted themselves to the jurisdiction of the court and invoked its judicial power to render a decree that will be binding and enforceable against both parties, they have waived the surrender clause and cannot hereafter be heard to say that the decree would not be binding. In Downey v. Gooch (D. C.) 240 Fed. 527, the United States court for the Eastern district of this state considered an oil and gas lease containing a surrender clause similar to that now under consideration, and held that plaintiff in that action having instituted a suit could not legally avail himself of the surrender clause, and that the lease for any future consideration stood as though that clause had never been inserted.

The surrender clause is also said to be harsh, inequitable, and unfair in its terms, and it is urged that specific performance should be denied for that reason. The reason it is said to be harsh and unfair is in that it authorizes the lessee to waive same and thereby deprive the lessor of the right to declare the lease terminated. If this criticism were well founded, there could be no objection to the parties' entering into a contract of that kind for a sufficient consideration. While it conferred upon the lessee the option to avail himself of the provision of the surrender clause, that was the very thing for which the lessee paid his money and which the lessor granted in consideration of the sum received.

The judgment is reversed, and the cause remanded.

bar to such suit, is a reasonable provision and ATCHISON, T. & S. F. RY. CO. v. COOPER. binding upon the parties to such contract.

(No. 8220.)

(Supreme Court of Oklahoma. June 11, 1918. Rehearing Denied Oct. 8, 1918.)

(Syllabus by the Court.)

1. COMMERCE 8(12)-RULES OF DECISIONFEDERAL COURTS RIGHTS UNDER INTER

STATE SHIPMENT.

The rights and liabilities of the parties to an interstate railway shipment depend upon federal legislation, the contract or bill of lading under which the shipment is made, and commonlaw rules as accepted and applied in federal tribunals.

2. COURTS 97 (5) DECISION OF UNITED STATES SUPREME COURT-RIGHTS OF PARTIES TO INTERSTATE SHIPMENT.

In cases arising in the state courts involving the rights and liabilities of the parties to an interstate railway shipment, the decisions of the Supreme Court of the United States, construing and applying the federal act, are controlling upon the state courts.

3. CARRIERS 218(10)

Error from District Court, Woodward County; James B. Cullison, Judge.

Action by Sam. J. Cooper against the Atchison, Topeka, & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

J. R. Cottingham, S. W. Hayes, and George M. Green, all of Oklahoma City, for plaintiff in error. D. P. Marum, of Woodward, and E. R. Hastings, of Oklahoma City, for defendant in error.

SHARP, C. J. This case presents error from the district court of Woodward county, and involves the question of the plaintiff's right to maintain an action to recover damages on account of the alleged negligent acts of the carrier in the transportation and delivery of two interstate shipments of cattlethe first shipment being from Kansas City, INTERSTATE SHIP- Mo., to Woodward, Okl.; the second, from MENT OF LIVE STOCK-NOTICE OF INJURY-Woodward to Kansas City. The damages to RIGHT OF ACTION. Failure to comply with the stipulation in a the Woodward shipment were claimed to live stock contract under which an interstate have resulted directly from the negligence shipment is made, providing in effect that, as a of the carrier in unloading plaintiff's cattle condition precedent to the shipper's right to in its pens at Waynoka, which pens were recover damages for any loss or injury to his stock during the transportation thereof, such at the time infected with the disease known shipper, or his agent in charge of the stock, as "scabies," and by reason of which negliwould give notice in writing of his claim there- gent act plaintiff's cattle contracted the for to some officer of the company or to the "scabies" and also a disease commonly known nearest station agent "before such stock shall have been removed from the place of destination as "pink eye." The damages to the Kansas or from the place of delivery of the City shipment were on account of the shrinksame to the consignee, and before such stock age in the cattle and decline in the market shall have been slaughtered or intermingled price, caused by the alleged unreasonable dewith other stock, and will not remove such stock from said station or stockyards until after the lay in their transportation to the Kansas expiration of three hours after the giving of City market. The shipment from Kansas such notice, and a failure to comply in every City to Woodward was covered by a live respect with the terms of this clause shall be a stock contract, paragraph 8 of which procomplete bar to any recovery of any and all such damages," is, in the absence of special circumstances rendering such stipulation invalid or excusing noncompliance, binding upon the parties thereto, and will be enforced in a court of law, when relied upon as a defense in an action arising under such contract.

4. CARRIERS 228(2)-INTERSTATE SHIPMENT OF LIVE STOCK-NOTICE OF INJURY-BURDEN OF PROOF.

The giving of the written notice of claim being made a condition precedent to a recovery, the burden of proof rests upon the shipper to show that such notice was given within the time provided, when made an issue in the case. 5. CARRIERS 218(1)-INTERSTATE SHIPMENT OF LIVE STOCK-LIMITATION OF TIME FOR BRINGING ACTION-VALIDITY.

vided:

"In order that any loss or damages to be claimed by the shipper may be fully and fairly investigated, and the fact and nature of such claim or loss preserved beyond dispute and by the best evidence, it is agreed that as a condition precedent to his right to recover any damduring the transportation thereof, or at any ages for any loss or injury to his said stock place or places where the same may be loaded road, or previous to loading thereof for shipor unloaded for any purpose on the company's stock will give notice in writing of his claim ment, the shipper or his agent in charge of the therefor to some officer of said company, or to the nearest station agent, or, if delivered to consignee at a point beyond the company's road, to the nearest station agent of the last carrier Under the Carmack amendment of June 29, making such delivery, before such stock shall 1906 (34 Stat. 595, c. 3591, U. S. Comp. St. have been removed from the place of destinaSupp. 1911. p. 1307 [U. S. Comp. St. 1916, §§ tion above mentioned, or from the place of de. 8604a, 8604aa]) § 7, pars. 11 and 12, to Act Feb. livery of the same to the consignee, and before 4, 1887 (24 Stat. 386, c. 104) § 20, which furnish- such stock shall have been slaughtered or ines the exclusive rule on the subject of the lia- termingled with other stock, and will not move bility of the carrier under contracts for inter- such stock from said station or stockyards unstate shipment, a stipulation in a contract for til the expiration of three hours after the giving an interstate shipment of live stock, providing of such notice, and a failure to comply in every that no suit or action against the carrier shall respect with the terms of this clause shall be be sustained in any court of law or equity "un- a complete bar to any recovery of any and all less such suit or action shall be commenced with- such damages. The written notice herein proin six months next after the loss or damage vided for cannot and shall not be waived by any shall have occurred," and that the failure to in-person, except a general officer of the company, stitute suit within said time shall be a complete and he only in writing."

This provision of the contract the carrier admitted, is well established in this state, charged in its answer the plaintiff had wholly as will be found from an examination of failed to comply with. The execution of the authorities cited and reviewed in C., R. the contract was not put in issue, but, on I. & P. Ry. Co. v. Conway, 34 Okl. 356, 125 the other hand, was set up by plaintiff, and Pac. 1110. There is no occasion to add to a copy thereof attached as an exhibit to his what has heretofore been said upon this petition. In answer to the claim of the com- subject, as we can conceive of no reason why pany that no recovery could be had, because a rule so long recognized and followed and of the shipper's failure to give notice in the so very generally supported by the authorimanner and within the time provided in the ties should be changed. contract, plaintiff answered, as we understand, by charging that the company had notice of the claim in writing, though the principal argument seems to rest upon the assumption that the burden of proof was upon the carrier to prove that no notice in fact had been served upon it. We have read the record with considerable care, and fail to find that written notice was served on the carrier until several days after the delivery of the cattle at Woodward, the point of destination. In reaching this conclusion we assume that a claim in writing was made on December 17, 1913, from certain correspondence had between the live stock agent of the company and the plaintiff in April following. The claim itself is not in the record. The cattle were delivered to the shipper at Woodward on either December 12th or 13th. Accepting the statement in the letter of the live stock agent as evidence that written notice was given, it is quite clear that it was not given within the time required in the contract. We assume, however, that the plaintiff does not rely upon this notice as sufficient to meet the requirement, but upon the legal proposition that it was incumbent upon the company to establish a noncompliance with the terms of the contract by affirmative proof. This, we say, in view of the following statement in the brief of the defendant in error:

"The presumption of law will be that if notice were required that it was given, and the fact as to whether or not it was given is a defensive fact, and want of notice must be proved by the plaintiff in error, who was the defendant below. They have in their possession all the files and facts regulating and controlling this shipment of cattle, and, had the notice not been given, it would have been an easy matter for them to have introduced proof of that fact, which they failed to do."

[1, 2] The validity of the limitations upon the company's liability imposed by section 8 of the live stock contract as to interstate shipments is a federal question, to be determined by the common law, and, as such, is withdrawn from the field of state law or legislation. Adams Exp. Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Missouri, K. & T. Ry. Co. v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690. This is the result of the passage by Congress of an act commonly known as the Carmack amendment of June 29, 1906 (34 Stat. 595, c. 3591, U. S. Comp. St. Supp. 1911, p. 1307) § 7, pars. 11 and 12, to the act of February 4, 1887 (24 Stat. 386, c. 104) § 20 (U. S. Comp. St. 1916, §§ 8604a, 8604aa). The act supersedes the state laws or policy nullifying contracts limiting the liability of a carrier for loss or damage, so far as interstate shipments are concerned. The law is now firmly established that the federal act as amended furnishes the exclusive rule on the subject of the liability of a carrier under contracts for interstate shipments. In such circumstances it is but our plain duty to follow the rule of decisions announced by the federal courts involving the federal statutes. Missouri, K. & T. Ry. Co. v. Walston, 37 Okl. 517, 133 Pac. 42; St. L. &. S. F. R. Co., v. Zickafoose, 39 Okl. 302, 135 Pac. 406; 6 Am. Neg. & Com. Ann. Cas. 717; Cincinnati, N. O. & T. P. R. Co. v. Rankin, 241 U. S. 319, 36 Sup. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265.

[3, 4] That the provision requiring written notice within a limited time is reasonable, and will in the absence of special circumstances be upheld, has repeatedly been held by the decisions of this court (St. L. & S. F. R. Co. v. Phillips, 17 Okl. 264, 87 Pac. 470; St. L. & S. F. R. Co. v. Cake, 25 Okl 227, 105 Pac. 322; St. L. & S. F. R. Co. v. Ladd, 33 Okl. 160, 124 Pac. 461; C., R. I. & P. Ry. Co. v. Craig, 157 Pac. 87; C., R.

Counsel cite in support of their contention, the following cases: Texas & P. Ry. Co. v. Reeves, 15 Tex. Civ. App. 157, 39 S. W. 135; Western Union Tel. Co. v. Jackson, 19 Tex. Civ. App. 273, 46 S. W. 279; St. Louis S. W. | I. & P. Ry. Co. v. Parsons, 162 Pac. 955; C., Ry. Co. v. Johnson, 38 Tex. Civ. App. 322, 85 S. W. 476; Texas & P. Ry. Co. v. Crowley (not officially reported) 86 S. W. 342. The cases are not in any sense controlling upon this court, and besides are based mainly upon a statute of the state of Texas passed March 4, 1891 (Rev. Stat. 1895, art. 3379), placing the burden of proof upon the issue of notice on the carrier.

The rule that the burden of proof rests upon the shipper, and not upon the company,

R. I. & P. Ry. Co. v. Gray, 165 Pac. 157; St. L. & S. F. R. Co. v. Taliaferro, 168 Pac. 438; C., R. I. & P. Ry. Co. v. McElreath, 169 Pac. 628, L. R. A. 1918C, 425), as well as in other cases. This rule we have announced, in view of the decisions of the Supreme Court of the United States upholding the right of the carrier. by special contract to limit its liability, provided the limitation is just and reasonable, and does not exempt such carrier from loss or responsibility due to negligence.