SULLIVAN, J.
This action was brought by the appellant to recover from the defendant bank $7,000, together with interest thereon, the principal sum of which had been deposited in the said bank for the benefit and use of the interveners, upon an agreement or option for the purchase of the Buffalo quartz mining claim, situated in the Thunder Mountain mining district, Idaho county.
On the third day of November, 1904, the appellant and the interveners entered into the following agreement:
“Warrens, Idaho, November 3, 1904.
In consideration of one hundred dollars, the receipt of which is hereby acknowledged, we, the undersigned, owners of the Buffalo Quartz Mining Claim, situated on Thunder Mountain, Idaho County, Idaho, hereby agree to sell said claim to F. W. Hunt of Boise, Idaho, for a price of seven thousand ($7,000.00) dollars, to be paid to our order at the Capital State Bank, at Boise, Idaho, on or before the 3rd [593]*593day of February, 1905, and that we will execute and deliver deeds for said property at the said bank to said F. W. Hunt, and will agree that the title to said property shall be good, and will proceed without delay to the survey and patent of said Buffalo claim, the said F. W. Hunt or assigns to pay the costs of patenting excepting the preliminary survey.
(Signed) S. A. HINDMAN,
S. C. GODLOVE.”
Thereafter, on the second day of December, 1904, a deed to said mining claim was placed in escrow with the defendant bank, to be held and to be delivered to the appellant according to the following instructions, deposited with .the bank at the time of depositing said deed, to wit:
“Placed in escrow in the hands of the Capital State Bank to be delivered to F. W. Hunt, if he shall make all the payments as below specified; otherwise, to be subject to the order of S. C. Godlove and S. A. Hindman of Warrens, Idaho.
“AGREEMENT.
Consideration .................................$7,100.00
Cash paid .................................... 100.00
Due Feb. 3d, 1905..............................$7,000.00
Due Feb. 3, 1905, expense incurred in procuring patent.
“There will be no obligation on the part of S. C. Godlove and S. A. Hindman to deliver above-described deed unless payments are made as above, time being the essence of the agreement.”
On the third day of February, 1905, appellant paid into said bank $7,000 to the credit of the interveners, and at the same time delivered to the bank the following writing, to wit:
“Agreement dated November 3, 1904, between S. C. God-love, S. A. Hindman to F. W. Hunt. Filed at request of F. W. Hunt, February 3, 1905, to accompany escrow agreement between above parties dated December 2, 1904. To the Capital State Bank of Idaho, Ltd. Payment of $7,000.00 being made this 3d day of February, 1905, to S. C. Godlove and S. A. Hindman by F. W- Hunt, in accordance with the terms [594]*594of said escrow agreement and said agreement of November 3d, 1904, you are hereby instructed to hold said amount until Beceiver’s receipt in application for patent of said Buffalo claim has been issued. F. W. HUNT. ’ ’
Thereafter the interveners proceeded with their application for a patent, and on the twenty-first day of October, 1905, the intervener Hindman presented the receiver’s final receipt for the sum of $105, that being in full payment for the area of land embraced in said Buffalo lode mining claim.
On the twenty-seventh day of October, 1905, the appellant delivered to the bank the following notice in writing -.
“Boise, Idaho, October 27th, 1905.
The Capital State Bank, Boise, Idaho:
Gentlemen — -I hereby notify you not to deliver or pay over to Godlove & Hindman, or either of them, or their assigns, the seven thousand dollars which you hold in escrow for the purchase of the Buffalo Quartz Claim in Thunder Mountain Mining District, Idaho County, State of Idaho, as the terms of their contract with me were not carried out.
Very respectfully,
F. W. HUNT.”
It appears from the testimony of the appellant, who testified at the trial of the case, that if he failed to make the payment of $7,000 on the 3d of February, 1905, the option of purchase expired; that he saw one of the interveners about getting an extension for the payment of that sum, and was informed that the affair was entirely in the other intervener’s hands, and whatever he did in regard to the matter would be satisfactory to him; that he failed to get an extension of time; that the option would expire on the 3d of February if the payment was not made, having failed to get an extension of time. The appellant then testified as follows: “I went to the bank on the 3d of February and I paid this $7,000. At that time the proceedings toward procuring a patent had not been completed. That was the reason that I asked for an extension of time. When I first got the option, we talked over [595]*595the patent proceedings, and Mr. Hindman told me he was going right into Roosevelt to make the preliminary survey of the ‘Buffalo,’ and that it would take him only a few days. That he would come right out with his application for patent; it would be well under way and perhaps completed by the third day of February, 1905.....I knew this proceeding had not been completed at this time.”
It is apparent from the testimony in the record that the proceedings for a patent were not completed as early as the parties had anticipated, and that the appellant desired the bank to hold the money until the final receiver’s receipt was issued for the land included in the Buffalo lode claim, thus making sure of a perfect title thereto. Apparently, the interveners were satisfied to leave the money in the hands of the bank, as requested by the appellant. They thereafter procured said final receipt and deposited it with the bank, and the bank thereafter turned them over the $7,000.
There is some conflict in the testimony of the appellant and of the cashier of the bank as to conversations had between them. The trial court evidently concluded to accept the evidence of the cashier as true, and made findings of fact, conclusions of law and entered judgment in favor of the bank and the interveners. There appears to be a substantial conflict in the evidence, and where that appears, the appellate court will not disturb the judgment of a trial court.
The main contention of counsel for appellant is, that said option expired on the third day of February, 1905, as the payment of the said $7,000 on that day was not an absolute payment. From all of the evidence in the case, it is clear to us that it was an absolute payment of the $7,000. The intervener, Hindman, testified on the trial that he received a letter from the appellant, in which the appellant notified him that he had made payment on the third day of February, 1905. The appellant testified that the expense of procuring the patent was not paid by him at the time of paying the $7,000 because the expense for procuring the patent was not known at that time.
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SULLIVAN, J.
This action was brought by the appellant to recover from the defendant bank $7,000, together with interest thereon, the principal sum of which had been deposited in the said bank for the benefit and use of the interveners, upon an agreement or option for the purchase of the Buffalo quartz mining claim, situated in the Thunder Mountain mining district, Idaho county.
On the third day of November, 1904, the appellant and the interveners entered into the following agreement:
“Warrens, Idaho, November 3, 1904.
In consideration of one hundred dollars, the receipt of which is hereby acknowledged, we, the undersigned, owners of the Buffalo Quartz Mining Claim, situated on Thunder Mountain, Idaho County, Idaho, hereby agree to sell said claim to F. W. Hunt of Boise, Idaho, for a price of seven thousand ($7,000.00) dollars, to be paid to our order at the Capital State Bank, at Boise, Idaho, on or before the 3rd [593]*593day of February, 1905, and that we will execute and deliver deeds for said property at the said bank to said F. W. Hunt, and will agree that the title to said property shall be good, and will proceed without delay to the survey and patent of said Buffalo claim, the said F. W. Hunt or assigns to pay the costs of patenting excepting the preliminary survey.
(Signed) S. A. HINDMAN,
S. C. GODLOVE.”
Thereafter, on the second day of December, 1904, a deed to said mining claim was placed in escrow with the defendant bank, to be held and to be delivered to the appellant according to the following instructions, deposited with .the bank at the time of depositing said deed, to wit:
“Placed in escrow in the hands of the Capital State Bank to be delivered to F. W. Hunt, if he shall make all the payments as below specified; otherwise, to be subject to the order of S. C. Godlove and S. A. Hindman of Warrens, Idaho.
“AGREEMENT.
Consideration .................................$7,100.00
Cash paid .................................... 100.00
Due Feb. 3d, 1905..............................$7,000.00
Due Feb. 3, 1905, expense incurred in procuring patent.
“There will be no obligation on the part of S. C. Godlove and S. A. Hindman to deliver above-described deed unless payments are made as above, time being the essence of the agreement.”
On the third day of February, 1905, appellant paid into said bank $7,000 to the credit of the interveners, and at the same time delivered to the bank the following writing, to wit:
“Agreement dated November 3, 1904, between S. C. God-love, S. A. Hindman to F. W. Hunt. Filed at request of F. W. Hunt, February 3, 1905, to accompany escrow agreement between above parties dated December 2, 1904. To the Capital State Bank of Idaho, Ltd. Payment of $7,000.00 being made this 3d day of February, 1905, to S. C. Godlove and S. A. Hindman by F. W- Hunt, in accordance with the terms [594]*594of said escrow agreement and said agreement of November 3d, 1904, you are hereby instructed to hold said amount until Beceiver’s receipt in application for patent of said Buffalo claim has been issued. F. W. HUNT. ’ ’
Thereafter the interveners proceeded with their application for a patent, and on the twenty-first day of October, 1905, the intervener Hindman presented the receiver’s final receipt for the sum of $105, that being in full payment for the area of land embraced in said Buffalo lode mining claim.
On the twenty-seventh day of October, 1905, the appellant delivered to the bank the following notice in writing -.
“Boise, Idaho, October 27th, 1905.
The Capital State Bank, Boise, Idaho:
Gentlemen — -I hereby notify you not to deliver or pay over to Godlove & Hindman, or either of them, or their assigns, the seven thousand dollars which you hold in escrow for the purchase of the Buffalo Quartz Claim in Thunder Mountain Mining District, Idaho County, State of Idaho, as the terms of their contract with me were not carried out.
Very respectfully,
F. W. HUNT.”
It appears from the testimony of the appellant, who testified at the trial of the case, that if he failed to make the payment of $7,000 on the 3d of February, 1905, the option of purchase expired; that he saw one of the interveners about getting an extension for the payment of that sum, and was informed that the affair was entirely in the other intervener’s hands, and whatever he did in regard to the matter would be satisfactory to him; that he failed to get an extension of time; that the option would expire on the 3d of February if the payment was not made, having failed to get an extension of time. The appellant then testified as follows: “I went to the bank on the 3d of February and I paid this $7,000. At that time the proceedings toward procuring a patent had not been completed. That was the reason that I asked for an extension of time. When I first got the option, we talked over [595]*595the patent proceedings, and Mr. Hindman told me he was going right into Roosevelt to make the preliminary survey of the ‘Buffalo,’ and that it would take him only a few days. That he would come right out with his application for patent; it would be well under way and perhaps completed by the third day of February, 1905.....I knew this proceeding had not been completed at this time.”
It is apparent from the testimony in the record that the proceedings for a patent were not completed as early as the parties had anticipated, and that the appellant desired the bank to hold the money until the final receiver’s receipt was issued for the land included in the Buffalo lode claim, thus making sure of a perfect title thereto. Apparently, the interveners were satisfied to leave the money in the hands of the bank, as requested by the appellant. They thereafter procured said final receipt and deposited it with the bank, and the bank thereafter turned them over the $7,000.
There is some conflict in the testimony of the appellant and of the cashier of the bank as to conversations had between them. The trial court evidently concluded to accept the evidence of the cashier as true, and made findings of fact, conclusions of law and entered judgment in favor of the bank and the interveners. There appears to be a substantial conflict in the evidence, and where that appears, the appellate court will not disturb the judgment of a trial court.
The main contention of counsel for appellant is, that said option expired on the third day of February, 1905, as the payment of the said $7,000 on that day was not an absolute payment. From all of the evidence in the case, it is clear to us that it was an absolute payment of the $7,000. The intervener, Hindman, testified on the trial that he received a letter from the appellant, in which the appellant notified him that he had made payment on the third day of February, 1905. The appellant testified that the expense of procuring the patent was not paid by him at the time of paying the $7,000 because the expense for procuring the patent was not known at that time. He also testified that he told the cashier of the bank at the time he paid the $7,000 that after the re[596]*596ceiver’s receipt for the Buffalo claim was obtained, he, the cashier, could pay it to Godlove and Hindman. That being true, the bank was fully justified in paying said $7,000 over to the interveners, after the receiver’s receipt was presented to its cashier.
It appears from the testimony that one of the interveners had a conversation with the appellant on the 19th of October, 1905, in which the former informed the appellant that he had received the final receiver’s receipt, and at that time showed the same to the appellant, with an itemized account of the expenses or cost of procuring the patent; that the appellant looked them over and passed them back to the intervener and said, ‘ ‘ It seems as though everything is all right. ’ ’ That at that time the appellant informed the intervener that he was going away and would like it if the interveners did not make a demand on the bank for the money before he returned; that the appellant also said that it took so much time to get the receiver’s receipt that he thought there ought to be some concession made to him, but did not say just what he wanted. The intervener saw the appellant again on the following Monday or Tuesday, and told him that he wanted to go down to .the bank and straighten the matter up; that appellant informed him that he would like to have a discount of ten per cent and the cost of the patent remitted; and the intervener replied that they had fulfilled their contract and were entitled to their money without any discount or concession of any kind. Thereafter he had another conversation with the appellant, and appellant offered to straighten the thing up and release the money in the bank if he would give him $100 and the cost of the patent, and the intervener replied “that he could do that.”
The cashier of the bank testified as a witness on behalf of the appellant, and testified that the final receiver’s receipt was filed and deposited with him on the 21st or 22d of October, 1905, when one of the interveners came to the bank and produced the final receiver’s receipt, and asked for a completion of the agreement in accordance with the escrow agreement. The cashier replied that “he would rather see the ap[597]*597pellarit, and for them to come in together”; and shortly thereafter he saw the appellant and informed him that said intervener was in the city, and had presented the receiver’s receipt; that the cashier went and got the papers and said to the appellant that, “under the circumstances, he sáw nothing to do but to comply with the agreement and pay the money”; that appellant agreed with him; that appellant said to the cashier, “that if the envelope (on which was written the escrow agreement) could just be lost some way, that might afford some relief”; that in a conversation with appellant he expressed a desire to get some allowance made on the part of the intervener, in the nature of a concession, and he had about twelve conversations with appellant during a term of about two weeks in regard to the matter, and clearly indicated a desire to get some concessions from the interveners and requested the cashier to defer the matter along from day to day; and the cashier did so, hoping that the matter would be amicably adjusted; that he thereafter submitted the matter to his attorney, who investigated the matter, and advised him to pay the money over to the interveners, and the money was paid over. The witness further testified that he knew that appellant was trying to get some concessions for the interveners, but when he found the money had been paid in accordance with the instructions, about the first remark he made to the cashier was as follows: “I could have had something over $200.” Thus intimating that he could have procured some concessions, if the payment had not heen made at that time.
It is clear to me, from the foregoing, that the appellant considered the transaction closed and was endeavoring to get some concessions. It is contended by counsel for the appellant that the payment of the money on February 3d, with instructions not to pay it over until the receiver’s final receipt was filed with the bank, was a change in the escrow. Conceding, for the sake of argument, that that was so, the consent of the interveners to allow the money to remain in the hands of the escrow holder, pending the issuance of the receiver’s receipt, was no waiver of their rights. However, [598]*598as we view it, the money was absolutely paid on the third day of February, 1905. The writing of February 3d deposited in escrow became, upon acceptance of its conditions by the interveners, merged in the contracts between the parties, and the contracts thus merged and modified must be construed as a whole. (Utley v. Donaldson, 94 U. S. 29, 24 L. ed. 54.) All the writings connected with this transaction may be construed together as one contract. It is clear that the interveners consented to leave the money on deposit until the receiver’s receipt was finally obtained. And thereafter said receipt was obtained and the money paid. The consent of the interveners to not withdraw the money until the receiver’s receipt was obtained amounted to a contract between the parties that the sale was completed, and that 4he costs of procuring the patent would be paid when the .amount was ascertained. The interveners fully carried out their part of the contract, and the appellant carried out his to the extent of paying the $7,000, and was bound to pay •the cost of procuring the patent when that amount was ascertained. The object of appellant in wanting the money to remain in the bank until the receiver’s final receipt was obtained is apparent, and when such receipt was received, it is apparent that the appellant desired to get some concessions from the interveners. It was for that purpose that the appellant asked the bank to delay payment from day to day.
(January 5, 1907.)
3. Where, under an agreement for purchase of a mining claim, H. agreed to pay the cost of procuring a patent to said mining claim, and H. and G. proceeded and procured the patent, and accepted the purchase price from the escrow holder, and declined to return the same to H. on his taking the position that they had not fulfilled their agreement. Held, that H. was entitled to his deed from the grantors and legally relieved from the payment of any further sum.
[598]*598I think, under the facts of this ease, the interveners are entitled to recover from the appellant the cost of procuring the patent to said mining claim. The judgment, therefore, must be affirmed, and it is so ordered, with costs in favor of the respondents.
Stockslager, C. J., and Ailshie, J., concur.