The lease was terminated by the act of the lessee in failing to pay or tender the rental on or before March 12, 1932, no well having been commenced. Chism v. Hollis, 152 Miss. 772, 118 So. 713; Hammons v. Flewellen, 48 S.W.2d 813; Texas Co. v. Davis, 113 Tex. 325, 254 S.W. 304, 255 S.W. 601; Humble Oil Co. v. Davis, 296 S.W. 285; Young v. Jones, 222 S.W. 691; Habermel v. Mong, 31 F.2d 822; Gillespie v. Bobo, 271 Fed. 641; 1 Thornton's Law of Oil and Gas (4 Ed.), p. 239, sec. 78-a; McGraw v. Pulling, Freeman's Chancery 357, at page 373; Burge v. Purser, 141 Miss. 163, 106 So. 770; Crenshaw-Gary Lbr. Co. v. Norton, 111 Miss. 720, 72 So. 140, L.R.A. 1916E, 1227-N; Erie Crawford Oil Co. v. Meek, 81 N.E. 518; Rechard v. Cowley, 80 So. 419; Sparks v. Albin, 241 S.W. 321; Ford v. Cochrane, 223 S.W. 1041; Abell v. Bishop, 284 P. 525. An "unless lease" automatically terminates as to any rights of the lessee thereunder upon default of the lessee in failing either to drill a well or to pay the delay rentals provided in the contract.
The lease was terminated by the act of the lessee in failing to pay or tender the rental on or before October 8, 1945, no well having been commenced. Chism v. Hollis, 152 Miss. 772, 118 So. 713; McGraw v. Pulling, Freem. Ch. 357, 373; Burge v. Purser, 141 Miss. 163, 106 So. 770; Crenshaw-Gary Lumber Co. v. Norton, 111 Miss. 720, 72 So. 140, L.R.A. 1916E, 1227-N; Hammons v. Flewellen, 48 S.W.2d 813; Texas Co. v. Davis, 113 Tex. 325, 254 S.W. 304, 255 S.W. 601; Humble Oil Co. v. Davis, 296 S.W. 285; Young v. Jones, 222 S.W. 691; Habermel v. Mong, 31 F.2d 822; Gillespie v. Bobo, 271 F. 641; Erie Crawford Oil Co. v. Meek, 81 N.E. 518; Rechard v. Cowley, supra; Sparks v. Albin, supra; Ford v. Cochrane, 223 S.W. 1041; Abell v. Bishop, 284 P. 525; 1 Thornton's Law of Oil and Gas (4Ed.), p. 239, Sec. 78-a. An "unless lease" automatically terminates as to any rights of the lessee thereunder upon default of the lessee in failing either to drill a well or to pay the delay rental provided in the contract.
The effect of failure to either pay rent or drill within the time stipulated, when required, is to automatically terminate the lease. Humble Oil Refining Co. v. Davis, Tex.Com.App., 296 S.W. 285, 287; Guerra v. Chancellor, Tex. Civ. App. 103 S.W.2d 775, 777, writ refused; Mitchell v. Simms, Tex.Com.App., 63 S.W.2d 371; Empire Gas Fuel Co. v. Saunders, 5 Cir., 22 F.2d 733; Davis v. Bussey, Tex. Civ. App. 298 S.W. 656, 657, writ refused; Hammonds v. Flewellen, Tex. Civ. App. 48 S.W.2d 813; Temple Lumber Co. v. Arnold, Tex. Civ. App. 14 S.W.2d 926, 929; 31 Tex.Jur. 842. The provision that the lease should remain in force for five years and as long thereafter as oil or gas is "produced" from said land means produced in paying quantities.
It seems to be the settled rule in this state that if one party, by words or conduct, induces a reasonable belief in the mind of another that he will do a thing or refrain from doing something except under certain limitations, and that other person is thereby induced to subsequently act to his own hurt, the former will be estopped to breach an implied agreement, arising from his words or conduct. Hammonds v. Flewellen, Tex. Civ. App. 48 S.W.2d 813; F. L. Shaw Co. v. Dalton Adding Machine Co., Tex. Civ. App. 211 S.W. 833; 10 R.C.L. 689, § 19. We overrule the contention thus raised.
The power to modify a prior existing contract is coextensive with the power to enter into such a contract in the first instance and is an incident of contractual capacity. 10 Tex.Jur. p. 356, § 203; Groce v. P. B. Yates Machine Co. (Tex.Com.App.) 288 S.W. 161; Rhoads Drilling Co. v. Allred, 123 Tex. 229, 70 S.W.2d 576, 583, pars. 8 and 9; Hammonds v. Flewellen (Tex.Civ.App.) 48 S.W.2d 813, 815, par. 2. The note and mechanic's lien contract for the improvement of the old house were by their own terms inconsistent with payment of $1,000 or any other sum out of the loan procured on said property before the payment of the cost of the improvements stipulated therein.