Opinion by

The plaintiff was the lessee of land for the purpose of operating and drilling for petroleum and gas. He sold a half interest in his leasehold estate to the defendant, and agreed to drill a well on the following conditions : (1) If gas was found in quantities sufficient to be utilized by the defendant, he was to be paid $1,500 and the actual cost of the well. (2) If oil was found, he was to be paid one half of the actual cost of drilling at eighty cents per foot, and one half of all other expenses. *391(3) If a dry hole (neither oil nor gas in paying quantities) was obtained, he was to be paid one half of the cost of drilling at eighty cents per foot and one half of all other expenses. In pursuance of this agreement, the plaintiff drilled a well and found gas at a depth of 1,109 feet. The well was at once connected with the defendant’s line, but was shut off a few weeks later and entirely disconnected at the end of three months.

This action was commenced more than three years after the well had been disconnected from the defendant’s line, to recover the price fixed by the first article of the agreement for a well that furnished gas in quantities sufficient to be utilized. The plaintiff rested on proof of the agreement, and that gas had been found, and the well connected with the defendant’s line. The defense was that the well had been connected for the purpose of testing the supply of gas, that the supply was found to be insufficient, and the well was abandoned as useless, and that a settlement had been made at the time under the third article of the agreement. In support of this defense the defendant offered, with other items of evidence, a bill presented by the plaintiff a few days after the test was made and paid by it, in which it was charged with one half the cost of drilling 1,109 feet at eighty cents per foot and one half of the other expenses, as provided in the third article. It also offered other evidence to show that at that time there had been a mutual understanding between the parties, and a settlement in full of all claims in connection with the drilling of the well. The admission of this testimony was the main ground of contention at the trial, and it is now argued that by taking possession of the well the defendant assumed all risks as to its value and became fixed for its price, and that the receipt shows only the acceptance of a part of a debt in satisfaction of the whole, and does not establish a valid accord and satisfaction.

In this argument the plaintiff begs the whole question by assuming that his proofs are conclusive. At most they are only prima facie. The connection of the well with the gas line was evidence only from which, if unexplained and unqualified, an acceptance might have been inferred. The right of the defendant to test the well in this way was undisputed, and the jury were instructed in answer to the plaintiff’s points that if the defendant used the gas or stopped the drilling of the well, it *392became liable. Under the issue raised, it was competent for the defendant to prove that the connection of the well with its line was made in order to test it, that the test showed that it was of no value, and there had been a settlement of all claims in relation to it, made on this basis. As proof of a mutual understanding and final agreement.and settlement, the receipt was evidence of the highest order. No question of accord and satisfaction arose. There was no claim by the defendant that there had been the acceptance of a smaller sum in payment of a larger one. The defense was that the smaller sum was all that was due, or was ever demanded.

The judgment is affirmed.