1. Oil and Gas — Lease — Construction — Nonliability of Lessee for Delay Rentals After Surrendering Lease. Where an oil and gas lease provides that the lessee shall complete a well within a certain time, or thereafter pay delay rentals, such provision is for the benefit of the lessor (so held in McKee v. Grimm et al., 57 Okla. 680, 157 P. 308, on the former appeal); but where such lease also provides that upon payment of one dollar and surrender of the lease for cancellation the lessee may relieve himself from further liability under the lease, such provision is for the benefit of the lessee; and where a well has not been completed nor rentals paid, and suit is brought by the lessor for unpaid rentals, and in the answer of the lessee he offers and tenders a surrender of the lease for cancellation, in substantial compliance with the said provision of the lease, such tender will be given effect to end further liability upon the part of the lessee under the lease. 2.

If he does neither of these, he is absolutely obligated to the other, and the amounts agreed to be paid for the delay may be recovered in an action therefor. Cohn v. Clark, 48 Okla. 500, 150 P. 467, L. R. A. 1916B, 686; McKee v. Grimm, 57 Okla. 680, 157 P. 308. If the lessee should choose to perform what may seem to be the least onerous obligation, and surrender, the lessor will obtain some benefit and the lessee suffer some detriment, at least to the extent of $1. It would seem, therefore, that under these alternative obligations to develop, or surrender, or pay for delay, a consideration is not wanting. The fact that the lessee must pay $1 at the time he exercises the right of surrender should, it would seem, afford ground for distinguishing decisions holding that the lessee was not obligated to anything where, under the leases there under consideration, the lessee was not obligated to pay anything at the time of surrender, or in which it was provided that the lease should terminate and become void as to both parties unless a stipulated sum was paid for delay.

Under an "or" lease the lessee is obligated either to drill a well or pay rental, and the failure to pay rental does not terminate the lease; and where the lessee makes default in the payment of rental the lessor may waive the default and recover such rental. Healdton O. G. Co. v. Smith, 80 Okla. 242, 195 P. 756; McKee v. Grimm, 57 Okla. 680, 157 P. 308; McDaniel v. Hager-Stevenson Oil Co., 75 Mont. 356, 243 P. 582. But under an "unless" lease the lessee is not obligated either to commence a well or pay rental.

In the case of Cohn v. Clark, 48 Okla. 500, 150 P. 467, the court held that parties may so word their contract that a failure to commence operations within the time specified, or to pay the rents, will, ipso facto, render the lease null and void, and automatically relieve the lessee of liability, — citing the case of Deming Inv. Co. v. Lanham, 36 Okla. 773, 130 P. 260. The same theory is followed in the later decision of this court in McKee v. Grimm, 57 Okla. 680, 157 P. 308, which cites with approval the holding of the court in Cohn v. Clark, supra. In Crowder v. James, 110 Okla. 214, 236 P. 891, the first paragraph of the syllabus reads as follows:

The principle applied in the Brunson Case, supra, to the effect that where down payment for what is termed an "unless lease" is substantial and is a consideration for the execution of the lease, and also for the option to renew or extend the term from time to time by drilling or commencing a well, as the case may be, or with a stipulated sum called rental for the privilege of deferring for a definite time the drilling or commencement of a well, the failure to drill or pay works a forfeiture of a valuable right conferred under a valid mutual contract based on a valuable consideration, has never been applied by this court. On the other hand, this court has many times, before and since the Brunson Case, held that in such cases, upon failure to drill or pay within the time provided by the option clause, the lease automatically terminates and that the equitable rules against forfeiture do not apply. Curtis v. Harris, 76 Okla. 226, 184 P. 574; Cohn v. Clark, 48 Okla. 500, 150 P. 467; McKee v. Grimm, 57 Okla. 680, 157 P. 308; Eastern Oil Co. v. Beatty, 71 Okla. 275, 177 P. 104; Mitchell v. Probst, 52, Okla. 10, 152, P. 597; Garfield Oil Co. v. Champlin, 78 Okla. 91, 189 P. 514; Eastern Oil Co. v. Smith, 80 Okla. 207, 195 P. 773; McKinlay v. Feagins, 82 Okla. 193, 198 P. 997; Crowder v. James, 110 Okla. 214, 236 P. 891. In McKinlay v. Feagins, supra, it was held:

The lease under consideration is of similar import, in that it terminates as to both parties unless the rental is paid, instead of using the term "null and void." In McKee v. Grimm, 57 Okla. 680, 157 P. 308, in the body of the opinion, on page 310, we find the following: "As stated by the court in Cohn v. Clark. supra, parties may so word their contract that a failure to commence operations within the time specified, or to pay the rents, will, ipso facto, render the lease null and void, and automatically relieve the lessee of liability."

In fact, leases of this character have been before this court in a number of cases, and their validity has been recognized. Burress et al. v. Diem et ux., 23 Okla. 776, 101 P. 1116; Cohn v. Clark, 48 Okla. 500, 150 P. 467, L. R. A. 1916B, 686; McKee v. Grimm, 57 Okla. 680, 157 P. 308. The decision in Brown v. Wilson held that the $1 paid upon the execution of the lease supported only the first term or the period in which a well should be commenced, and supported no other condition of the lease.