dissent">Humphreys, J.

(dissenting). The sole purpose of the contract, the alleged breach of which is made the basis of tliis suit, was that the 10 acres of land covered by the lease might be developed and operated as a diamond mine within the shortest practicable period of time. To that end, it was provided in the lease that the lessees should proceed in good faith and with diligence to wash as much dirt as could reasonably be washed in excess of 10,000 loads of dirt each year for the recovery and extraction of diamonds. The purport of the contract was that much more than the minimum amount of material should be washed. Touching upon this phase of the contract in the case of Mauney v. Millar, 134 Ark. 15, this court said: “The contract clearly contemplated a persistent effort to develop the mine. It provides for a minimum amount of dirt to be taken out and washed, but further provides that the work shall be carried on with diligence, and that as much as reasonable should be taken from the mine. ’ ’ It was also announced in that case that a substantial failure on the part of the lessees to carry out the terms of the contract would work a forfeiture thereof and entitle the lessors to a rescission of the contract and cancellation of the lease. The complaint in the instant case charged that appellants had failed to wash as much dirt for the recovery and extraction of diamonds as was reasonably possible, with the facilities at hand, between April 10, 1917, and April 10, 1918. This allegation was controverted. The evidence of many witnesses was directed to this issue. After a careful study and elaborate analysis of the evidence, the chancellor found this issue with appellees. The finding of the chancellor is supported by a decided preponderance of the evidence. There is ■ scarcely any dispute in the testimony to the effect that the plant was not operated over one-half of the time between these dates, and, by a great weight thereof, not over one-fourth of the time. The most appellants contend for in this particular is that the minimum amount of dirt, to-wit, 10,000 loads, was washed. The excuse offered for not washing more finds scarce, if any, support in the evidence. The exigencies of the war are interposed as an excuse. The evidence failed to show that the employees of the mine were affected by the draft between April 10, 1917, and April 10, 1918. Only two negroes were subject to draft, and, according to the clerk and members of the local board, they were not drafted until after April, 1918. The general proof upon the supply of labor in that particular community was to the effect that there was plenty of labor to be had during that period of time. In fact, there is evidence tending to show that applications for labor were declined. Unnecessary litigation was also offered as an excuse for not milling more dirt, but the record fails to show that any litigation was pending during that period which materially interfered with the progress of the work. It developed that the plant was destroyed, but this did not occur until long after the expiration of the particular period of time in question. As further excuse or justification for not milling more dirt, appellants alleged,the execution of a supplemental contract to the original, permitting them, when necessary, to change from surface to underground mining, and it provided that, during the time necessary to make the change, appellants should be ex-exempt from washing dirt. It is also alleged that, in order to change to an underground system of mining, it will be necessary to move the plant from Kimberly and sink a shaft to the depth of about 500 feet on adjoining land and tunnel from the shaft through other land and under the land covered by the lease • and that it will be necessary to postpone the sinking of the shaft until a construction of the supplemental lease can be had by the courts, in order to ascertain whether the plant can be removed from Kimberly to, and the shaft sunk on, adjoining lands. In the first place, the necessity for changing from surface to underground mining is not sufficiently established by the evidence. According to the great weight of the evidence, the diamond bearing dirt on the surface has been exposed and is ready for treatment for the recovery of -diamonds. Under the terms of the supplemental lease, the lessees were not given authority to determine when underground mining became necessary. That was an open question, and, before such change could be justified, the necessity or exigency must actually exist. As before stated, the weight of the evidence in this ease shows that no such exigency had arisen. Nor did the supplemental contract warrant a discontinuance of surface mining until a construction of the contract could be obtained from the courts. The' mere fact that contracts are ambiguous, or susceptible to several constructions, will not warrant a delay in the execution thereof during the pendency of suits for the construction thereof. If this were the law, delays in the execution of contracts would be innumerable and the courts flooded with such suits. Nor does the supplemental contract contain any warrant for developing the mine and sinking the shaft for that purpose on adjoining land. The purpose of the contract was to develop, as rapidly as possible, a producing mining plant at Kimberley, on the land leased. The supplemental lease must be read in connection with the original lease, and the original lease calls for the mining site to be at Kimberley, and not on adjoining lands. It was provided in the original lease that the lessors might have the right to enter upon the lands and constantly inspect the operations so as to protect themselves from loss of diámonds in which they shared under the terms of the lease. To place such a construction as appellants contend for on the supplemental lease would deprive appellees to a large extent of these protective reservations in the original lease. There might be some basis for the construction placed upon the supplemental contract by appellants if they had purchased all the diamonds on the land in question, because, in that event, it would not concern appellees very much as to the manner in which they were procured, whether by surface mining or by underground mining, or whether the mine underneath was reached by shaft and tunnel on adjoining lands or on the lands in question. But, where the purpose of the lease was to develop a great commercial mine, its location and the manner of reaching it were of great moment, especially when the lessees, under the terms of the contract, had an interest in every diamond recovered.

The desultory and ineffective manner in which appellants attempted, during the period in question, to develop the mine, constituted a substantial failure on their part to carry out the contract according to its terms. For this reason, I think the chancellor’s decree should have been affirmed.

Mr. Justice Hart concurs with me in this dissent.

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