"It was this provision that was relied upon in the demurrer to the amended petition, and in the third general defense in the answer of the oil company.

"Reduced to its essence, this is a promise to in writing, upon sufficient consideration, to pay a yearly rental of $128 for the right to use, to a limited extent, certain premises, with a further provision in the same instrument, that a failure to pay should discharge the debt; that a default of payment should be the equivalent of payment; that failure should be performance; that non-payment should be payment.

"Such contradictions in like instruments have caused the courts to look critically into such instruments to ascertain the real intention of the parties, because such contracts can not be enforced according to their letter. A promise to pay can not be fulfilled by a failure to pay. A promise to drill a well can not be satisfied by a failure to drill such well. The proper construction to be placed upon such an agreement is, that upon failure of the lessee to drill a well, or pay the rental, or both, as the case may be, the lessor may elect to put an end to the lease, and enforce payment of the promised rental, or sue for damages for failure to drill the well, or he may elect to have the lease continue in force to the end of the term, and enforce the drilling of wells and the payment of rentals, as provided in the lease. Such provisions of forfeiture are for the benefit of the lessor, and not for the benefit of the lessee. The lessee can not plead his own default or wrong in discharge of his obligation to drill or pay rental."

The contract under consideration here has no such express provision, and, besides, it contains no condition upon which there shall be a forfeiture, but simply a provision for a cancellation, which, as I have said, requires a positive act-something more than a mere failure to perform; and we think the principles enunciated in the case from which I have just read apply with full force to the case under consideration and to the argument advanced in support of the proposition that the failure to perform operated to cancel the agreement.

It is contended on behalf of the defendant in error that Young did exercise his right to cancel the agreement. It will be observed that it is very clearly and distinctly provided in the agreement that Young shall be liable for at least $100, whether he manufactures any handle bars or not. About that

Van Tuyl v. Young et al.

[Vol. III, N. S.

counsel make no question. As I have said, we hold that the provision as to cancellation was limited to February 1, 1899. There was some correspondence upon the subject of putting an end to this agreement, and it is upon that correspondence that the defendant in error relies to show that the cancellation was effected. I need not read all of it. The first letter referring to the matter of putting an end to the contract is dated November 29, 1898. It reads:

"MR. THOS. VAN TUYL,

"Nicholas, Iowa.

"Dear Sir: I write you to-day in regard to your double adjustable handle bar which has been absorbing my attention more or less for the past month, and at this time can not see my way clear to do you justice upon your bar for the coming season. Our Mr. Hubbell and myself had about concluded a deai whereby one of the largest jobbing houses in the bicycle sundry and fittings line would dispose of the output for us, but the deal, up to this time, has not been consummated, and they report to us that they have got more than they can do this season upon their regular line. We are also in a similar condition ourselves with our own business here, and it is taking so much of our time and attention that it is impossible for us to do your handle bar justice. I therefore wish to state if you will kindly release me and Mr. Hubbell as my surety, in regard to contract entered into, I will surrender and deliver contract to you. I believe that this will certainly be to your advantage, because it will be necessary to do considerable preliminary work even for the coming year, and it will now enable you to prepare yourself in plenty of time for the retail trade for next season; and introducing a bar of this kind, it will be almost impossible to force it onto the manufacturer or jobber before you have done your preliminary work with the retailer. I therefore verily believe that you should take hold of it and put it on the market this season.

"I have regretted very much my inability to give it proper attention and was in hopes to tie up with some concern who would handle the output for this season and give it a name in the trade.

"Enclosed please find release of contract, which I would ask you to kindly sign and return, and will forward to you tools and bars now in our possession. I believe you will consider this the best thing to be done in the premises, and let the contract

revert back to you. Therefore, if you will kindly send in your release, we will act very promptly."

And in connection with that appears a release, which we understand is a copy of the one which went forward with the letter (though it contains the date of December 6, 1898), which reads:

"MR. H. J. YOUNG,

"Toledo, Ohio.

"Dear Sir: In consideration of your surrendering contract between us dated September 16, 1898, to me, for the control of U. S. letters patent No. 603,671, I hereby release you and your surety from all obligations thereunder.

"Very truly yours."

That was to have been signed and returned by Mr. Van Tuyl. The answer that Mr. Van Tuyl made does not appear in the record, but it is apparent from other letters by Mr. Young and Mr. Hubbell that he did not accept this proposition. There is more correspondence along that line-more letters-before February 1, 1899, in which this proposition to rescind is repeated. Then on June 2, which was after the time, according to our construction of the contract, within which Mr. Young might have cancelled this contract and surrendered it, he writes as follows:

"MR. THOS. VAN TUYL,

"Nicholas, Iowa.

"Dear Sir: Please take notice that on November 29, 1898, I did by letter cancel and surrender all my right, title and interest that I had or might have acquired in and to a certain contract, dated the 16th day of September, 1898, between you (Thomas Van Tuyl, Nicholas, Iowa) and myself (H. J. Young, of Toledo, Ohio), in regard to a patented adjustable handle bar; and I hereby again notify you that I do relinquish all my right, title and interest in and to above contract, and I hereby surrender my original copy of said contract, and send the same by mail to you to-day.

"Very truly yours,

H. J. YOUNG."

And accompanying that was his copy of the contract with the words "Canceled November 29, 1898," written upon it. When

Van Tuyl v. Young et al.

[Vol. III, N. S.

that was written upon it does not appear, but according to our construction of these letters and these acts, the statement that he had, upon November 28, 1898, canceled the contract and surrendered his rights under it, was incorrect. He had simply proposed a rescission upon the terms that his obligation to pay $100 should be canceled and released-a proposition that Mr. Van Tuyl was not required to accept, and that he steadfastly refused to accept. We do not think that it would have been necessary for Mr. Young to have paid $100 as a condition precedent to exercising his right to cancel; but he might have canceled absolutely, if he had done so before February 1, 1899, and then Mr. Van Tuyl would have been compelled to enforce as best he could the obligation of Mr. Young and his bondsmen to pay $100. But Mr. Young did not attempt to exercise that right. He was seeking to save the $100 and to obtain a rescission of the contract by agreement with Mr. Van Tuyl. The situation was this: Up to the second of June Mr. Van Tuyl had declined to accept this proposition to rescind the contract and put an end to the rights conferred upon Mr. Young under this contract-the exclusive right to manufacture and vend was still in Mr. Young. Mr. Van Tuyl had no right, upon the mere submission of this proposition, or unless he accepted it and released Mr. Young from the obligations under the contract to manufacture and vend handle bars, or to confer the right upon another. The exclusive right to make and vend the handle bars was in Mr. Young, and remained in him. Mr. Young said that he would relinquish it; that he would surrender the contract if the obligation to pay $100 were surrendered, and that proposal Mr. Van Tuyl declined. So that we are of the opinion that Mr. Young did not accomplish a cancellation; indeed, did not attempt to exercise the right to cancel the contract within the time that by its terms he might have done so.

Holding these views, and believing that the measure of damages applied by the court below was not correct, and that the motion for a new trial should have been granted upon the ground that the award was too small, the judgment of the

court of common pleas will be reversed, and the cause remanded. C. E. Longwell, for plaintiff in error.

B. F. Brough, Doyle & Lewis and C. A. Seiders, for defendant in error

CONVEYANCES.

[Circuit Court of Lucas County.]

WILLIAM H. A. READ, ASSIGNEE, ETC., V. TOLEDO LOAN Co.

Conveyance-Instrument Witnessed and Acknowledged by Interested Parties Acknowledgment Before a Notary a Ministerial Act― Grantor Estopped from Claiming Invalidity, When.

1. A conveyance is not rendered invalid in Ohio by reason of the fact that the witnesses thereto and the notary who took the acknowledgment were interested parties to the extent of being stockholders in the grantee company.

2. An attestation by a notary public is not a judicial but a ministerial act in this state.

3. In view of the custom for the grantor to prepare his own deed, call the witnesses and acknowledge its execution before it passes into the possession of the grantee, he is estopped from objecting to a witness in whom he has thus reposed confidence in the witnessing of his own act.

HULL, J.; PARKER, J., and HAYNES, J., concur.

This case involves the question as to whether an interested party may witness a mortgage and also act as a notary public in taking the acknowledgment of the grantor.

The action below was brought originally in the probate court by the assignee, by filing a petition to sell real estate, making the Toledo Loan Company and others parties defendant. The Toledo Loan Company filed its answer and cross-petition setting up a mortgage given by Cary D. Lindsay, the assignor. The assignee replied, denying the validity of that mortgage,

*Affirmed by the Supreme Court (68 Ohio State, 280).