The opinion of the court was delivered by

The questions presented depend entirely upon the construction to be given to the contract. The appellants contend that the paragraphs of the contract copied above are determinative of the controversy; that by the terms of the second paragraph the $15,000, admitted to have been paid, is an advance payment of royalty for coal actually mined, while the first paragraph requires the payment of $240 per month after and including August, 1908, whether any coal is mined or not. In other words, it seems to be conceded that if 3000 tons or more of coal were mined each month the royalty therefor might properly be deducted from the $15,000 advanced, but if no coal, or less than 3000 tons, be mined in a certain month the $240 or the royalty on the coal not mined necessary to make up 3000 tons could not be so paid.

We can not accept this construction of the contract. The second paragraph provides, in relation to the application of the $15,000: “Which is an advance upon royalty hereafter to become due to the said parties of the first part from the said second'party from the mining of coal from the said land, as aforesaid” — not from “coal mined” but from “mining coal.” The entire contract relates to mining coal, and the minimum royalty due after August, 1908, is $240 per month.

The $15,000 is not subject to forfeiture, but is a deposit as security for the payment of any royalties which may become due by the terms of the contract, whether by reason of mining less or more than 3000 tons per month. (Cunningham v. Stockon, 81 Kan. 780.)

Under the contract the plaintiffs had the right to pay themselves $240 as royalty out of the deposit on the 25th of September, October and November. They have *84no cause of action against the appellee so long as they have sufficient money of the appellee’s in their own hands which was deposited for the purpose of paying in advance the very obligations on which judgment is sought.

The judgment is affirmed.