Kelly

This is an appeal from a judgment in favor of plaintiffs, terminating a lease of real property, but refusing to allow liquidated damages for failure on the part of the defendants to commence the sinking of an oil-well within a specified time. The appeal is from the judgment-roll alone. The evidence is not before this court.

May 24, 1926, the plaintiffs leased to the defendants 320 acres of land for the purpose of sinking oil-wells thereon. The lease contained a provision to the effect that if the lessees, failed to “begin actual operations toward the drilling of a well on or before the expiration of June 30, 1926, . . . he agrees to pay lessors as liquidated damages the sum of $1,000.” The court found that the lessees failed to commence the drilling of the oil-wells within the prescribed time, or. at all; that they were, therefore, guilty of a breach of the agreement and thereupon terminated the lease, but further found as a conclusion of law that the lessors were not entitled to any sum whatever as liquidated damages.

The pleadings fail to raise the issue of liquidated damages. It is true that the lease containing the provision respecting liquidated damages was made a part of…