The opinion
ON PETITION POR REHEARING.
The double rule of construction criticized in the petition for rehearing applies, of course, only to the contract regarded as an entirety. In liberal construction as defined in the opinion, the forfeiture clause would be practically, if not wholly, immaterial and would not be considered. The contract without that clause is one thing and the contract with it is another, legally speaking. That clause is not essential to right of recovery of damages, injunctive relief, specific performance or any other judicial remedy, not involving forfeiture. But, when a claim of right is based upon the forfeiture clause and other provisions, it is essential, and the construction then involves consideration of the entire contract.
Of course, the argument or reasoning might take a different form. It may be said the interpretation of the covenant or condition is always the same, but that the ambiguous and the implied provisions or elements thereof are not within the forfeiture clause, and are not available for relief by re-entry, while they may be relied upon for ordinary judicial relief. Which method of solution is the better or more consistent is an academic question upon which it is unnecessary to béstow time and labor. Each, brings about the same result.
The conclusion that breach of an implied covenant or condition constitutes no ground of forfeiture does not conflict with any actual decision of this court. It is at variance with an obiter dictum found in Carper v. United Fuel Gas Co. 78 W. Va. 433 ; but that case involved no claim or question of forfeiture. It was a mere action for damages for failure to drill wells. The observation was made only argumentatively, in the course of interpretation of the lease involved, and was not essential to the *469 conclusion arrived at and announced. It would have sufficed to say a demand for the drilling of off-set wells was a prerequisite to a right of action for damages, instead of a condition precedent to right of forfeiture. On the other hand, the observation may be correct and yet not inconsistent with the position taken here in conformity with previous actual decisions. Denomination thereof as a mere -dictum is all the present situation requires.
Reversed; decree for defendant; remanded.