
    Green Ridge Fuel Co., Appellant, v. Rebecca Littlejohn et al.
    1 Landlord and tenant: leases: execution: parol evidence. A lease-signed by only a portion of the interested parties, under an agreement that it should not be binding until signed by all, is not executed until so signed; and oral evidence of the agreement is not objectionable as tending to vary the writing, but is competent to show that it never became obligatory.
    2 Leases: unilateral contract. Where the terms of a lease contemplate that all the interested parties shall sign the same, and the lessee is obligated to work and pay rent for the premises, it is not an unilateral instrument.
    3 Mines and mining: leases: acceptance. A lease of coal land executed by only a portion of the grantors, with the understanding that it was not to be-' binding until signed by the other grantors and the lessee, was not rendered obligatory by the fact that the lessee without signing the instrument went onto the premises and prospected for coal under a provision that he might do so, and if in his opinion coal in paying quantities was found he should mine the same and pay a royalty to the lessors, since by the terms of the contract it was optional with him whether he should mine or not.
    
      Appeal from Mahaska District Court. — Hon. Byron W. Preston, Judge.
    Monday, February 15, 1909.
    William A. Littlejohn died testate April 20, 1902, survived by a widow, Rebecca Littlejohn, and nine children. By the terms of the will, the use of the realty was given to the wife so long as she remained his widow and during her natural life, and upon her death the property to be divided between his children, share and share alike. The widow accepted under the will, and, on the 10th day of October, 1906, she and all but three of the children, Melville B. Littlejohn, Mary A. Smith, and Alta M. Rogers, signed a lease conveying coal underlying the surface on conditions named to the Crescent Coal Company. This company in prospecting discovered coal in workable quantities, and on the 10th day of July, 1907, assigned the lease to the plaintiff. On April 30, 1907, the widow and all tlie heirs executed a somewhat similar lease permitting the removal of coal on specified conditions to II. O. Miller and A. W. McMillan, and after an extension of time, executed May 20, 1907, these lessees assigned the lease to Andrew’ Love, who after drilling nine holes sunk a prospecting shaft, and after lifting-considerable coal drove an entry. The ultimate issue ivas whether plaintiff or Love was entitled to mine the coal from the land. The court dismissed plaintiff’s petition, and it appeals. —
    Affirmed.
    
      H. H. Sheriff, for appellant.
    
      John F. and Wm. B. Lacey, and W. II. Keating, for appellees Littlejohn and others.
    
      Bolton & Bolton, for appellees Love and others.
   Ladd, J. —

The alleged lease to the Crescent Coal Company dated October 10, 1906, ivas assigned by it to the plaintiff July 10, 1907. The instrument, which for convenience may be designated the first lease, purported to be from the widow and heirs.of William A. Littlejohn to the former company; but neither it nor two of the heirs ever signed such instrument, and the guardian of a minor heir had signed his name thereto without ,an order of court. The lease executed April 30, .1907, by the widow and heirs to Miller and McMillan, and by them assigned to Love, is not challenged save as purporting to permit the removal of coal previously disposed of by virtue of the first lease ' under which plaintiff claims.

The controlling question is whether the instrument of May 10, 1906, was binding on the parties thereto at the time the second lease was executed. Appellees contend that the first lease was never executed, and that, if it was, it was subsequently abandoned. The evidence is conclusive to the effect that Crew, representing the Crescent Coal Company, and the widow and heirs in negotiating the lease, expressly agreed orally that the instrument should not be binding on the parties thereto until signed by -all the heirs and the company and a copy signed by the company was returned to them. As two of the heirs and the company failed to sign the paper, it never was executed. Appellant, however, argues that oral evidence’ of the arrangement under which part of the heirs signed was not admissible because tending to- vary or contradict a written contract. Such was not the purpose of the evidence, but rather to show that the writing never became obligatory at all, and to do that it was competent. Sutton v. Weber, 127 Iowa, 361; Creveling v. Banta, 138 Iowa, 47.

But appellant contends that it should be treated as a unilateral agreement. Such was not the intention of the parties, for, apart from the oral arrangement referred to, by the terms of the lease obligation to work the mine and pay rent or royalty are imposed on the lessee, and the instrument stipulates that the parties are to bind themselves by signing the lease. As it was not so intended, the lease should not- be construed as unilateral. Flanders v. Merrill, 38 Iowa, 583; Cross v. Snakenberg, 126 Iowa, 638.

Nor was such lease accepted and adopted by the parties as to render it binding. True, the lessee was to “test said' land by drilling and otherwise, and, in- case there should be discovered a minable vein or basin of coal of sufficient quantity and quality to justify the opening and mining of said coal in the opinion of said party, then they agree to mine out said coal,” and pay as stipulated. In other words, it was optional with the company whether it should mine the underlying coal, and it was allowed to prospect in order to enable it to elect whether it would do so. It went upon the land for the purpose of investigation, and not in pursuance of an agreement to mine. Such possession neither bound it to proceed under the lease, nor was it notice of acceptance to the lessors. In prospecting coal was discovered in workable quantities, but the company never so advised the lessors. Indeed, the president of the company testified that “the Crescent Coal Company had never made up its mind as to what it would do,” and, believing it “a better proposition to sell the lease than to open the miné,” assigned the lease to plaintiff. In so far as disclosed by the record, it may still be in this condition of uncertainty. As it had neither signed the lease nor accepted its terms, the paper never became binding on the parties thereto. The widow and heirs could not have enforced the terms of the lease. Love v. Atkinson, 131 N. C. 544 (42 S. E. 966); Castro v. Gaffey, 96 Cal. 421 (31 Pac. 363). Nor could the Crescent Coal Company without signing and electing tc proceed to mine coal thereunder. Ordinarily time is held to be of the essence of mining contracts, even though not expressly so stated, and parties thereto must be vigilant-in asserting their rights thereunder. See Merk v. Bowery Min. Co., 31 Mont. 298 (78 Pac. 519); Waterman v. Banks, 144 U. S. 394 (12 Sup. Ct. 646, 36 L. Ed. 479). Whether there has been such delay in this case as to defeat the contract need not be considered, as the lease never became binding on either party thereto, and nothing passed under the alleged assignment to plaintiff.

What- we have said sufficiently answers the contention that the lease, as it were signed by the widow, a life tenant, was valid.

The petition was rightly dismissed, and the judgment i,s affirmed.  