Schlageter

This action was brought by plaintiffs to recover from defendant the sum of $2,500, alleged to be due under the terms of a certain written agreement. The case was tried by the court, without a jury, and judgment went for plaintiffs, as prayed. Defendant appeals.

On October 5, 1928, the plaintiffs as parties of the first part, and defendant as party of the second part, executed a certain instrument designated by its terms as an agreement of lease and option to purchase. It might be here noted that another party was associated with defendant in the beginning, but inasmuch as defendant had acquired all of the right, title and interest of his associate prior to the events surrounding the present controversy it is conceded here that the latter has no interest in the proceedings. Therefore, further reference to this feature of the agreement will be omitted and the discussion which follows will include only the parties to the action.

The salient parts of the agreement may be epitomized as follows: “The parties of the first part hereby lease to the parties of the second part, . .■ . the following described mining ground with an option to purchase same, on the terms and conditions herein…