¶1dissenting:
¶2The majority opinion, it is stated with deference, misconceives the clear import of the supplemental agreement here involved. By the terms of that instrument, the parties agreed that the appellants would, at their expense, secure a survey of the land by B. B. Carmichael for the purpose of determining the correct description of the land and the acreage included therein; that such survey would be binding upon both parties, and that if it showed a variance of more than five acres from the 784 acres recited in the deed, there would be an adjustment in the purchase price calculated on the entire variance on the basis of $110.00 per acre; that if said survey showed that the description recited in the deed and deed of trust was incorrect, the parties would execute correction instruments to reflect the proper description and the reduction or increase in the purchase price as the case might be; that should either party refuse or fail to execute the necessary correction instru*127ments the increase or decrease in the purchase price would nevertheless be binding upon both parties and would be added to or taken from the amount of the first note securing the unpaid balance of the purchase price; that in the event of the death or disability of the said Carmichael to make the survey, the appellee would have the right to name a surveyor to make the survey in the place and stead of the said Carmichael; and in the event of his failure or refusal so to do within a reasonable time, the appellants would have the right to select such surveyor to make the survey.
¶3It will be observed that the supplemental agreement imposed no duty upon either party to select a surveyor to make the survey upon the death or disability of Carmichael. In fact, there is no provision in the agreement which required either party to select a surveyor to make the survey, or even to have a survey made, in the event of the death or disability of Carmichael. The parties were merely given the option or right of election, the first right being accorded to the appellee, to name a surveyor to make the survey or to accept the description and acreage recited in the deed, provided that if either party exercised his option or election to have the survey made, any increase or decrease in the purchase price would be added to or taken from the amount of the first note. Thus it clearly appears from the agreement that the parties contemplated and intended that if either desired to exercise his option to name a surveyor and to have a survey made, the same should be done and the acreage ascertained by the due date of the first note.
¶4Bearing in mind that in the event of the death or disability of Carmichael the supplemental agreement did not require either party to name another surveyor and have a survey made, but merely granted the option or right of election so to do, it becomes manifest from the facts of this case that the appellants elected not to exercise their option to name another surveyor and have *128a survey made within the contemplation and intention of the parties, hut on the contrary, elected to accept the description and acreage as recited in the deed.
¶5The supplemental agreement was dated October 15, 1916. The deferred purchase price was evidenced by ten notes, each for the principal sum of $6,468.00, due one each year, beginning December 1, 1947. The appellants contacted Carmichael to make the survey within six or eight weeks after the date of the contract. Carmichael died from a heart ailment on June 24, 1947, before making the survey. After the happening of that event there was no obligation upon either party to name another surveyor to survey the land and no requirement in the contract that the land be surveyed. It -was then entirely optional with the parties whether a survey would loe made to determine the description and ascertain the acreage, or whether they would accept the description and acreage as recited in the deed. Between the date of Carmichael’s death and the due date of the first note on December 1, 1947, a period of more than five months, neither the appellants nor the appellee attempted or signified any intention to exercise their respective options to have the land surveyed or to claim the benefit of any increase or decrease in the amount of the note first becoming due. On the due date of the first note, the appellants paid it without reservation of any kind, and necessarily well knowing that the contract provided that any variance of acreage as determined by a survejr was to be applied to the first note. In like manner the appellants paid the note due December 1, 1948, without claiming the right to have the land surveyed and without reservations of any kind. In January or February, 1949, the appellant, Payne, had a conversation with the appellee, in which the appellee told him that he saw no need of a survey and clearly indicated that he had no intention of naming another surveyor to survey the land. Between that time and the due date of the third note on December 1, 1949, the appel*129lants took no steps to select a surveyor and have the land surveyed, and without reservations of any kind. In 1950, the appellant, Payne, had another conversation with the appellee in which the appellee told him that he saw no need for a survey and clearly indicated that he did not intend to name a surveyor to survey the land. With full knowledge of all of these facts, the appellants paid the note becoming due on December 1, 1950, without reservations of any kind. No steps were thereafter taken by the appellants to name a'surveyor until 1951, when the appellants employed E. O. Wilde to survey the land. The Wilde survey was not made until February, 1952, and the map thereof was not filed until May, 1953. In the meantime, the appellants paid on their due dates the notes becoming due on December 1, 1951, and December 1, 1952, without reservations of any kind. In other words, throughout the period from June 24, 1947, the date of Carmichael’s death, to December 1, 1950, the due date of the fourth note, embracing a period of more than four years, the appellants took no steps to exercise their option to name a surveyor to have the land surveyed, and paid all of the maturing notes without asserting the right to exercise such option and without reservations of any kind, although they had well known since January, or February, 1949, that the appellee liad declined to have the land surveyed.
¶6As has been stated, after the death of Carmichael, there was no requirement in the contract that the land be surveyed. The parties were simply given the option or right of election to have the land surveyed or to accept the acreage and description as recited in the deed. Any variance in the acreage of more than five acres was to be adjusted by application to the first note becoming due December 1, 1947. In 67 C. J. S., page 511, the word “option” is defined as implying “a right to act or not as the optionee may choose,” and as meaning “the right of choice; right of election to exer*130cise a privilege; power or right of election; right of choice between two things, courses, or propositions, and the choice of one excludes the choice of the other . . . ”
¶7Appellants necessarily knew that by the terms of the contract they had merely the option or right of election to have the land surveyed upon failure of the appellee to do so, or to accept the description and acreage as recited in the deed. By the payment of the notes without reservation and without reference to a survey, they must be held to have elected not to name a surveyor, but to accept the acreage and description as recited in the deed. Their choice of the one course excluded the other. To hold otherwise would be to say that the appellants would not be held to have elected to accept the acreage and description recited in the deed, even though, without claiming the right to have the land surveyed and without reservations of any kind, they had paid every note, including the last, throughout a period of ten years, during which property lines might be changed by encroachments and rights of adverse possession accrue. Certainly such a result was not in the contemplation of the parties, nor is it justified under the express or implied terms of the agreement.
¶8The authorities relied upon by the majority to the effect that there must be a new consideration to support a waiver in the absence of the elements of estoppel, and that there can be no estoppel in the absence of a showing of prejudice to the opposite party, have no application in my opinion to the case before us. It is not questioned, and cannot be questioned, that the supplemental agreement which was a part of the contract of sale was a valid contract and supported by a consideration. The rights of the parties here are measured by that agreement. Under the terms of the agreement, it was not obligatory upon either party to have the land surveyed after the death of Carmichael. This might have been done at the option of the parties. The agreement itself conferred upon the parties the right *131to waive that option and elect to accept the acreage and description as recited in the deed. This right was conferred upon the parties by the terms of their solemn agreement, whether such waiver by either party resulted in prejudice to the other party or not. As I view the case, it is controlled by the agreement which, after the death of Carmichael, did not require either party to have the land surveyed, but merely conferred upon the parties the right to do so, which right was subject to waiver and to the right of election to accept the acreage and description as recited in the deed. It seems to me that the facts in this case clearly show that the appellants by their acts and conduct elected not to exercise their option to have the land surveyed, but on the contrary, elected to pay the notes and accept the acreage and description as recited in the deed. It is therefore my opinion that the result reached by the chancellor was correct, and that the decree of the court below would be affirmed.
¶9I accordingly respectfully dissent from the majority opinion.